The sanctions raise important questions: Is this enough action from the United States? Was this the right strategy? What more should be done? EJ Hogendoorn and John (JP) Prendergast are two leading experts on the conflict. They’ve worked for U.S. Special Envoys to Sudan, run U.S. interagency processes on Sudan, negotiated with Sudanese leaders, and worked for the same international NGO – but they have different views on the way forward. The dialogue below highlights their ideas and puts them in debate with each other.

 John “JP” Prendergast: EJ, we largely agree on the causes of Sudan’s implosion, but we have a major divergence on what to do about it. Since much has been written already about the causes, and very little about solutions, I’d love to dive into the substance of our policy disagreements and see if we can help shed light on some serious options for what can be done about Sudan’s metastasizing crisis.

I’d like to start with what should be the fundamental objective of U.S. policy. Of course, we agree that the United States – working with key allies – should continue to do all it can to secure a humanitarian ceasefire, though current efforts have yielded little in that regard. But I don’t think the only objective of U.S. policy should be another framework agreement between the armed factions creating a transitional administration leading eventually to a civilian-led, democratic government. Such an agreement, based on a hope and a prayer, would allow the warlords currently tearing the country apart to have time to consolidate their positions while international attention eventually shifts away from Sudan, giving them the opportunity to undermine any such transition down the road. Thus, I think U.S. policy should instead be aimed at undermining and ultimately dismantling the kleptocratic cabals run by the two principal warlords – General Abdel Fattah Burhan, who heads the Sudan army (SAF), and General Mohamed Hamdan Dagalo (known as “Hemedti”), the leader of the paramilitary Rapid Support Forces — who have built up huge commercial monopolies and hijacked Sudan’s government and economy.

EJ Hogendoorn: JP, I agree that the ultimate objective should be an accountable, democratic government – which most Sudanese want – and that many of Sudan’s current elite are undermining this objective to protect their positions and ill-gotten wealth. It will be the task of a transitional government to prepare for a credible election, draft a constitution for this new government, and put in place the institutional reforms that limit the power of the kleptocratic old guard, begin to address corruption, and create a level economic playing field necessary for the country’s economic development.

Where we diverge is how we get there. My first concern is to quickly and sustainably stop the fighting. If we do not do so quickly, I fear that we could have an entrenched, multifaceted civil war that would be an unmitigated humanitarian catastrophe, destabilize the region, and produce an even more massive surge of refugees—so far 1.4 million Sudanese are displaced, with hundreds of thousands of refugees in neighboring Egypt, Chad and Ethiopia. I would argue that focusing first on dismantling kleptocratic networks would detract from the effort to stop the fighting and can be deferred until we get to a transitional government. We have both seen this civil war scenario before in Sudan, and in the region. It will take time to dismantled corrupt networks – time we do not have.

JP: Of course, stopping the fighting should be priority number one, but frankly that could take months if not years, given how committed both sides are to the death spiral they’ve put the country into. I fundamentally don’t believe that there can be a stable, somewhat peaceful transition to a democratic government that involves the current leaders of the two warring parties. And there is no way these warlords can be sidelined without finally, for once, going after the kleptocratic networks that have cemented this violent autocratic system in place.

The U.S. government doesn’t have to lead the peace negotiations, as it has been doing with Saudi Arabia – unsuccessfully, I might add. There are plenty of regional powers who have a demonstrated capacity to manage a negotiations process, such as Kenya, some of the Gulf states, or the African Union. I believe the comparative advantage of the U.S. would have it play a different role. The U.S. is uniquely positioned to lead what USAID calls a “dekleptification” strategy, aimed at dismantling or at least undermining the corrupt system over which the warlords are fighting. For years the U.S. has helped lead mediation efforts in Sudan, and look where we are. The system in Sudan is “too deformed to be reformed,” as many Sudanese have argued throughout the years.  While engaged in deep mediation, the U.S. diplomats leading these efforts have argued against using the targeted financial tools of pressure that could address the corrupt system, worrying that such escalation would undermine U.S. negotiating access.

Sudan’s military leaders will not hand over power to civilians, will not diversify the economy, will not stop using extreme violence and repression to maintain the status quo, and will not move in any positive direction unless their calculations are altered through painful financial consequences.

That is why the Biden administration’s sanctions package is so important.  Finally, a price will be paid for profiting from immense human misery.  But this should just be a first step in an escalating strategy of financial pressure on the leaders of these warring parties and their commercial interests.

EJ: JP, I agree with your concerns about the structural problems with the Sudanese state, which have led to chronic armed insurgency. However, I think that we should sequence the application of financial pressure more strategically, and if we do so we can stop the fighting in Khartoum quite quickly. The Rapid Support Forces (RSF) is a mercenary force that was able to grow rapidly because its leader, Mohamed Hamdan Dagalo better kown as Hemedti, gained control of several gold-producing areas in Sudan and because the Gulf states paid him millions of dollars a month for the RSF’s services in Yemen, fighting the Houthis. His troops fight for money, not a purpose, and many will melt away if they are not paid their salaries. Note that one of the companies sanctioned by the U.S. is Al Junaid Multi Activities, controlled by Hemedti’s family, which is heavily involved in gold production and export, particularly through the Dubai Gold and Commodities Exchange in the UAE.

I have a rough logic and timeline that I would argue could be the basis for a strategy to end the conflict and put Sudan back on the right path. Right now, the two “armies” are relatively equal, although the Sudan Armed Forces (SAF) have the advantage in heavy weapons and likely Arab support. I hope we both agree that a stalemated conflict would be the worst outcome, because it would lead to a long and bloody war. More controversially, I contend that to end the conflict quickly we should help one side prevail by applying more financial pressure on the other.

Because of the rough balance of power between the two forces, I maintain that the least bad option for external actors is to help the SAF by focusing more attention and financial pressure on the RSF-affiliated companies. Importantly, this pressure would need to be applied by the U.S. and its Gulf partners, particularly the UAE and Saudi Arabia, where the RSF has very large bank accounts and business interests. Once the RSF realizes that it is losing, it will hopefully agree to peace and quickly integrate into the SAF. After all, an effective government cannot have two independent armies.

Then negotiations to restore a civilian government-led transition would resume. In this phase, external actors would put more financial pressure on the SAF to honor its pledge to hand over power. I think one lesson from the current fighting and Sudan’s history is that a military dictatorship cannot stabilize the country and would lead to more armed unrest. Once a civilian government is restored, it could focus on drafting a permanent constitution, preparing for elections, and initiating a few economic reforms designed to limit corruption and put the economy back on track. Last, but not least, elections would be held in 1-2 years, leading to a fully mandated and legitimate government that can institute more reforms.

JP: Ironically, until recently, my colleagues and I at The Sentry had been arguing exactly that, ever since former Sudanese President Omer al-Bashir was overthrown in 2019. The RSF’s role in Darfur’s violence, its killing of protesters in Khartoum, its open alliance with Russia’s Wagner Group and Libyan warlord Khalifa Haftar (among others), and its violent monopolization of gold smuggling out of Sudan made its leadership a prime candidate for Global Magnitsky or other types of targeted sanctions. But over the past year, it has become screamingly obvious that General Burhan and the army leadership are as opposed to a democratic transition as General Hemedti and the RSF leadership. So, a pox on both houses is in order.

Both the RSF and the SAF are the main opponents of a civilian-led democracy. They both have built monopoly control over key sectors of Sudan’s economy, and they both are responsible for mounting war crimes with each passing day. I do not believe the U.S. should take sides in this conflict. I think we should be leading international efforts to impose network sanctions on the leaders of both cabals, their shell companies, and their enablers and facilitators in the international financial system.

In fact, the U.S. should take a side, just not the one you are proposing. We should be ramping up support for the extraordinary pro-democracy people’s movement that for years has worked for systemic change in Sudan, including the neighborhood-based Resistance Committees. The absence of civilians in the current process and the emphasis on accommodating the interests of those with the biggest guns simply empowers and entrenches the warlords and moves Sudan further away from any chance at stability and decent governance.

EJ: I agree that the leaders of both the RSF and the SAF have a lot to answer for and that the end goal is to empower the millions of peaceful protestors who have sacrificed so much to achieve “freedom, peace and justice,” but again, I would argue that the priority is to stop the fighting before Sudan collapses into a patchwork of warlord-controlled fiefdoms. We have both seen how long civil wars can last, even when sanctions are applied and without other countries fueling the conflict, and the enormous humanitarian toll of even a simmering civil war. Neighboring South Sudan is a case in point. A United Nations arms embargo and targeted sanctions – admittedly not well enforced by the region – have not stopped chronic armed conflict or a steadily growing humanitarian crisis. The U.N.’s Office for the Coordination of Humanitarian Affairs (OCHA) estimates that 9 out of its 11 million people require assistance. Therefore, I contend that we first end the fighting quickly by tipping the scales against the RSF. Then we threaten network sanctions so that the military does hand power over to a civilian government, as it promised, and apply them if it does not.

JP: The problem with the idea of a quick end to the fighting is that the mediators have very little leverage left, which I believe needs to be rebuilt using rapidly escalating targeted network sanctions on the competing cabals that are destroying the country, building on the Biden administration’s June 1 sanctions. So, it isn’t just about creating some accountability for the enormous financial and human rights crimes committed by both parties. It’s also about rebuilding leverage over time to support the forces of peace and democracy inside the country in their efforts to achieve fundamental system change. That kind of a serious financial leverage strategy is certainly not what has happened in South Sudan, where occasional sanctions with half-hearted enforcement simply embolden the warlords. If we are serious about supporting long term peace and stability in either country, the U.S. needs to bring out the kind of policy tools of financial pressure it uses for higher-order crises around the world.

EJ: I agree that for the Biden administration’s June 1 sanctions to be effective, the U.S. must employ determined high-level regional diplomacy to convince other partners, in particular the UAE and Saudi Arabia, to also apply those sanctions and ideally additional financial pressure to end the fighting between the RSF and SAF. The U.S. can – and should – argue that Sudan’s long-term stability requires a quick end to the fighting, a single professional military and an inclusive and accountable government.

Ending the fighting will require starving Hemedti and the RSF of money, which pays for its troops and arms, so that it can no longer fight the vicious, high-intensity conflict that is destroying Khartoum and risks collapsing the Sudanese state.  Forcing the RSF out of Khartoum would not only be a major humanitarian achievement but also would lay the groundwork for much more productive negotiations, which must also address Sudan’s two army problem.

To get to a single professional army will require the RSF merging into the SAF, which again can only happen if the SAF gains the military upper hand. If the U.S. and partners apply equal pressure on both the RSF and SAF, they may get a ceasefire but will do little to change Hemedti’s calculations or willingness to relinquish control of the RSF.  A return to the status quo ante bellum, with two large independent armies, would only create the conditions for another war.

This is not to say we should give the SAF the upper hand and then hope for the best.  To get an inclusive and accountable government, Sudan needs to move away from military rule – which has never stabilized the country since independence – and towards an elected government that has a broad mandate to carry out the structural reforms that we agree are necessary to address the center-periphery grievances that have fueled decades of insurgency. Only then can Sudan, and the region, stabilize and prosper.

IMAGE: Smoke billows behind buildings in Khartoum, Sudan, on June 4, 2023, as fighting between the country’s warring generals enters its eighth week. (Photo via Getty Images)

The post Two Experts Debate the Path Forward on Sudan appeared first on Just Security.

Aggression against Ukraine has been recognized and condemned by the UN General Assembly and other international and regional organizations, including NATO, the Council of Europe, the African Union, and others. The crime of aggression is defined in international law, but in the case of the crime of aggression against Ukraine an impunity gap exists because the International Criminal Court does not have jurisdiction in this concrete situation and is not likely to have it in the nearest future. For this reason, discussions on the establishment of an ad hoc criminal tribunal for the crime of aggression being committed against Ukraine continue. There are high expectations among the international community that the legal path chosen is capable of accommodating international law and the manifest violation of the UN Charter being committed by Russia against Ukraine.  The goal must be to condemn the Russian ideology and hold Putin and his entourage to account for the core international crime of aggression against Ukraine that continues to be planned, prepared, and brutally executed in our own times.

While perfect international law solutions are deadlocked because of Russia’s seat in the UN Security Council, politicians, experts and international lawyers keep discussing two different models for establishment of the tribunal for the crime of aggression committed against Ukraine.  The first option is an international tribunal established following the recommendation of the UN General Assembly for the UN Secretary-General to negotiate an international agreement between the UN and Ukraine establishing the court (the “Special Tribunal”).  The second option is a hybrid or internationalized national tribunal as it was named by U.S. Ambassador for Global Criminal Justice Beth Van Schaack, a court that would be established within the Ukrainian judicial system (see Ambasadorę Van Schaack’s Remarks on the U.S. Proposal to Prosecute Russian Crimes of Aggression – United States Department of State).  In his recent address in The Hague, President of Ukraine Volodymyr Zelenskyy sent the clear message that Ukraine needs bold decisions that will correct shortcomings of the current international legal system — “not something hybrid that can formally close the topic” in terms of the diplomatic conversations, but that will not truly and fully address the problem at hand  (see Speech by Volodymyr Zelenskyy to representatives of the public, political and expert circles of the Kingdom of the Netherlands and international institutions based in The Hague  — Official website of the President of Ukraine).

In the end any decision on the establishment of the criminal tribunal for the crime of aggression against Ukraine will be a political decision. And even though in the enforcement, application, and development of international law the fusion of international politics and international law is inevitable, the modality of an internationalized national tribunal is more about foreign policy than legal choice.  The second option compromises international law at a critical time when the legitimacy of international law must be restored to effectively confront, both militarily and judicially, the crime of aggression against Ukraine that is being committed by Russia, a permanent member of UN Security Council.

– The legitimacy of international law can only be restored by establishing a fully-fledged international tribunal for the crime of aggression under recommendation of the UN General Assembly.

The definition and establishment of the crime of aggression under international law protects fundamental values of the international community, a prominent one being international peace and security. According to the International Law Commission, the prohibition of the use of force protects not only the survival and security of individual states, but more than their sum, namely the interests of the international community as a whole (see Yearbook of the International Law Commission 2001 Volume II Part Two (un.org)).Theoretically, a national criminal trial established within the Ukrainian judicial system could implement the objective of ending impunity and ensuring accountability for the crime of aggression against Ukraine.   But it could never restore the legitimacy of international law to defeat the crime of aggression being committed against Ukraine, as that is the task of institutions responsible for the restoration and maintenance of international peace and that apply international law directly. Therefore, the UN General Assembly resolution recommending establishment of an international criminal tribunal for the crime of aggression against Ukraine is of crucial importance for ensuring the continuing legitimacy of rules on the prohibition of the use of force and proving that accountability under rules of international law is inevitable for such manifest violations of the UN Charter.

According to the liberal theory of international relations, the fundamental interest of the international community, namely international peace, is served by the certainty that acts of aggression are met by the collective opposition of states. According to the realism theory of international relations, the functioning of the collective security system is considered from the sovereign policy perspective.  According to scholar S. D. Krasner, the defining characteristic of the international system for realists is anarchy.  The most important empirical reality is that national power, including but not limited to the ability to wage war, matters more than anything else (see S. D. Krasner “Realist views of international law” in ASIL Proceedings (2002)).  Probably for realpolitik reasons, even though the UN Charter prohibits war as a means for solving political conflicts, in the current era “aggressiveness” occasionally has been easily forgiven and probably would still need to be forgiven for some states instead of being prosecuted in a special criminal tribunal or the International Criminal Court.

But international law as it stands today already includes compromises for two different forms of aggressive uses of force. Not all acts of aggression as defined by the 1974 UN General Assembly resolution on the definition of aggression can be and will be prosecuted as crimes of aggression under international law because the level of manifest violation of the UN Charter will not be found. The gravity and scale of aggression against Ukraine, framed by the character of Russian ideology holding that Ukraine as a sovereign and independent state does not exist, is the very kind of situation that international community will consider as an act of aggression constituting a manifest violation of the UN Charter. This has already been and will continue to be the case for the international community had to and must still consolidate its efforts to ensure accountability and restore faith in fundamental rules of international law concerning non-use of force in international relations.

The legitimacy of the decisions at stake depends on the international legitimacy of the tribunal that indicts and sentences political and military leaders of an aggressor state that is a permanent member of the UN Security Council. To avoid the risk of illegitimacy, the tribunal must be established under international law and have the mandate for prosecution of the crime of aggression entrusted by the whole international community. The crime of aggression has special inter-state political dimensions in comparison to other international crimes, the direct object of which is not individuals, but the whole state. In this case that means the independent sovereign state of Ukraine and the integrity of its borders and political independence that the UN Charter and international law have promised to protect and defend. The fact that the crime of aggression involves complex political judgements also was acknowledged in the Draft Code of Crimes against the Peace and Security of Mankind. Even though not corresponding to state practice, it provides that an obligation to prosecute or extradite could be applicable to all international crimes, except the crime of aggression, which because of its political dimension should be prosecuted in the international court as national courts would not be able to effectively carry out such prosecutions of the crime of aggression.

This sounds like a purely legal argument.  One can argue that in the case of the crime of aggression against Ukraine, on 2 March 2022 the UN General Assembly adopted a resolution entitled, “Aggression against Ukraine,” which deplored in the strongest terms the aggression by Russia against Ukraine as being in violation of Article 2(4) of the UN Charter—prohibition  of the use of force—with 141 votes in favour, 5 votes against and 35 abstentions. Thus Russia’s acts of aggression as being in violation of the UN Charter has been acknowledged by the UN General Assembly.  Sentencing individuals in an internationalized national court for the crime of aggression might then be viewed as legally feasible.  Maybe.   But the question remains if it is legally right or  legitimate to close our eyes to the extraordinary nature of the crime of aggression in comparison to other international crimes.

The Kampala resolution on the crime of aggression adopted by the ICC’s Assembly of States Parties states that the aggression amendments shall not be interpreted as creating the right or obligation to exercise domestic jurisdiction with respect to an act of aggression committed by another State (see ICC-ASP-16-24-ENG.pdf (icc-cpi.int)).  This means that the crime of aggression, unlike the other core crimes of the Rome Statute, should rather not be prosecuted at the national level. Yoram Dinstein in War, Aggression and Self-defence submits that the nature of crimes against peace is such that no domestic proceedings can conceivably dispel doubts regarding the impartiality of the judge.  Any panel of judges comprised exclusively of enemy (or former enemy) nationals, for example, will be suspected of irrepressible bias.

One of the features of an internationalized national tribunal that has been suggested is incorporation of international judges. But this and other elements of so-called internationalization, such as acceptance of an international law definition of the crime of aggression or incorporation of international human rights standards, will not create the international mandate for prosecution of the crime of aggression against Ukraine. It will only reduce doubts regarding the legitimacy of the national prosecution, but it will not turn a national judicial institution into the international one which would  be entrusted with the essential interest of the whole international community to ensure accountability for the crime of aggression against Ukraine.

– Making the internationalized national tribunal legal will be as difficult as making it legitimate.

Article 125 paragraph 5 of the Constitution of Ukraine explicitly prohibits the establishment of extraordinary and special courts. Besides the particular domestic legal difficulties of changing this constitutional provision while martial law applies, special national procedures will have to be drafted, discussed, considered and adopted for the appointment of international judges to become possible. Even though the argument is being made that for such a purpose martial law could be lifted, in order to change this provision of the Constitution, the approval of two consecutive parliamentary sessions and the Constitutional Court’s opinion on constitutionality would also be needed. Even in the countries not suffering from unprecedented aggression, such processes take a long period of time and are hardly predictable.

Furthermore, international support for an internationalized national accountability effort for the crime of aggression against Ukraine could help solve problems of finances and human resources for such a tribunal.  But international support could not make the national process of the establishment faster or avoid being undermined by different political obstacles and configurations that could arise in the country still facing internal challenges including from Russia’s collaborators. For these reasons, the argument that an internationalized national tribunal could be established within the Ukrainian judicial system faster and in a more effective way than a favorable vote in UN General Assembly lacks credibility.  International financial support for the tribunal will be needed in any modality chosen and voluntary contributions of states committed to fighting impunity and ensuring accountability for the supreme international crime of aggression against Ukraine will be crucial. But the more international legitimacy is vested in the establishment of the tribunal, the more likely that states will see it as being an international and consolidated accountability effort standing for fundamental interests of the global community as a whole. This would definitely lead to broader trust and sustained support (including financial resources and staffing) by states in comparison to leaving international support issues to bilateral agreements with separate states that Ukraine would have to negotiate.

Furthermore, as it was stated in the International Court of Justice Lotus case, jurisdiction is about the potential collision of sovereignty rights. Considering that international accountability interests in the case of aggression against Ukraine are so substantial, objective and subjective impartiality of the accountability mechanism is of crucial importance. Ambassador Van Schaack, for instance, earlier postulated that there is “little in the way of state practice or opinio juris in favor of the exercise of domestic jurisdiction over the crime of aggression.” She dismissed Nuremberg and the ensuing elements of state practice and opinio juris since they are “sui generis” and “preceded the development of modern doctrines of foreign sovereign immunity and universal jurisdiction” (see B. Van Schaack, “Par in Parem Imperium Non Habet: Complementarity and the Crime of Aggression”, Journal of International Criminal Justice, 10 (2012)).

For these reasons, one can understand why Ukraine supports establishment of a full-fledged international tribunal. The state as victim of the crime of aggression has an essential interest grounded in the fundamentals of international law and human rights development to entrust prosecution for the supreme crime of aggression with an impartial international institution that could not be accused of lacking legitimacy, independence, and authority to try the crime of aggression and, most importantly, to try political and military leaders of the aggressor state whether or not they remain in office.

In the case of crime of aggression against Ukraine, fundamental rules in relation to the protection of state sovereignty are being and will be challenged. The definition of the crime of aggression in international law and the development of the human rights agenda demand significant redefinition of the sovereignty concept. The International Criminal Court issued arrest warrants against Putin and Maria-Lvova Belova for the alleged war crime of unlawful transfer of population (children) from occupied areas of Ukraine to Russia.   The arrest warrants reflect important developments of international law concerning the obligation to prosecute international crimes and the non-applicability of immunities under international law. Unprecedented decisions that still await the establishment of the tribunal cannot ignore these developments in international law.  The pending decisions must be fully international and reflect the interest of the international community to be effective as opposed to decisions of an internationalized national court that will have to be constantly proven to be international in character and enforcement in order to be taken seriously.

The modality of an internationalized national tribunal without the need to achieve a vote in the UN General Assembly allows for some states to stay neutral on modus operandi in relation to the root cause of all atrocity crimes being committed in Ukraine, including the crime of aggression. But there is no place for neutrality in the case of the crime of aggression being committed against Ukraine because the greatest  threat to international peace and security relentlessly continues. The decision to prosecute or not to prosecute military and political leaders of the aggressor state, particularly a  permanent member of the UN Security Council, Russia, has a direct and lasting effect on the legitimacy of those persons having violated fundamental rules of international law. More importantly, this moment in history is crucially important for restoring trust in international law and international legal order that the UN Charter embodies.

The international community must take a bold step forward after the UN General Assembly condemned the unjustified aggression by Russia and numerous resolutions of international and regional organizations called for a comprehensive accountability system for international crimes being committed in Ukraine. “Comprehensive” does not mean leaving the most responsible for the crime of aggression against Ukraine immune from international law. The International Criminal Court undertook its responsibility within its jurisdictional parameters. The issue remains if the international community will undertake its fundamental responsibility to restore the legitimacy of international law by putting the issue of the tribunal before the UN General Assembly and broadly supporting it.

– Amnesty, immunities, and impunity gaps

The argument sometimes is made in favor of an internationalized national tribunal that Ukraine should maintain certain control over the tribunal for the crime of aggression, most probably for the possibility of granting an amnesty. If an international tribunal were to be established following the recommendation of the UN General Assembly, making trade-offs between peace and justice would be almost impossible as this would be an internationally supported and result-orientated independent institution with separate international legal personality with the fundamental objective of ensuring individual criminal responsibility of Russia’s political and military leadership for the crime of aggression against Ukraine.

Indeed, not that long ago amnesties were considered as contributing to promotion of transitional justice and reconciliation within societies that survived massive and systematic human rights violations. But as it was mentioned before, the supreme international crime of aggression is different from all the other international crimes because of its specific object: a sovereign and independent state,  its profound context and political dimensions, a focus on leadership, and consequences for the international public order and all-encompassing implications for the victim state, its people and the entire international community. As with war crimes, this is not an international crime that can or should be swept aside by amnesties. Furthermore, on 24 February 2023, the UN General Assembly adopted a resolution on Ukraine’s peace formula with a strong justice and accountability dimension for the most serious international crimes committed on the territory of Ukraine. On 17 March 2023, the ICC issued arrest warrants against Putin and Belova. Because of these developments, the argument of maintenance of certain Ukrainian control over the tribunal can be considered as carrying more political than legal weight.  Setting the precedent of amnesty for the core international crime of aggression could have devastating effects on the international public order and legacy of international law for the future.

The theoretical possibility of an amnesty does not close the gap of impunity if an internationalized national tribunal were to be established, as personal immunities would be afforded under international law to heads of states, prime ministers and ministers of foreign affairs. The idea behind personal immunities is to respect and protect the sovereignty of states from interference by other states and from being prosecuted before courts of third states. But following the ICJ judgement in the Arrest Warrant case, certain international tribunals having jurisdiction can override international immunities afforded by international law to heads of states and ministers of foreign affairs. Even though in that case the ICJ did not adjudicate the crime of aggression – the international crime that by definition encompasses political leadership of the aggressor state – the ICJ judgment is often rightfully cited in discussions among lawyers on the possible tribunal for the crime of aggression against Ukraine.

Even though the ICJ did not elaborate on what features a criminal tribunal has to possess to fit into the category of international tribunals capable of overriding international immunities, by giving examples the ICJ referred to criminal tribunals being established by the UN Security Council resolutions under the chapter VII of the UN Charter and the International Criminal Court being established by multilateral treaty, the Rome statute. Examples given by the ICJ enable one to conclude that the model of establishment and broad support afforded by states are crucial elements in holding a tribunal as having international legitimacy and being able to override immunities. Indeed, among the legal instruments for international criminal tribunals referenced by the ICJ were also the Charter of the International Military Tribunal of Nuremberg and the Charter of the International Military Tribunal of Tokyo, both of which had jurisdiction over crimes against peace.

For these reasons, if an internationalized national tribunal were to be established for the crime of aggression against Ukraine, international law will protect the aggressor state’s leaders more than it protects the victim state and its people. Considering ICC arrest warrants being issued for Putin and Belova for alleged war crimes and bearing in mind both the immunities defense and the leadership clause within the definition of the crime of aggression, taking Putin off the accountability table in the case of the crime of aggression against Ukraine as soon as the internationalized national tribunal is established would result in an unjustified downgrading of the crime of aggression in relation to other international crimes and would send a clear impunity signal to Putin and other dictators and power-hungry authoritarian leaders around the world in what they do on the international stage as well as at home.

* * *

Less can be more, but not when the crime of aggression as a manifest violation of the UN Charter is being committed against the independent and sovereign state of Ukraine pursuant to a Russian world ideology that does not exist beyond Putin’s mind. The international community must stand together with Ukraine to defend vital international values. Less will be more when all states having one vote and — devoted to international rule of law, peace and security — consolidate their efforts by voting in the UN General Assembly to mandate establishment of a full-fledged international tribunal for the crime of aggression against Ukraine. Such a global vote will not only have moral and political impact, but it will crucially influence the strength and legitimacy of the judicial institution that will be entrusted with the core responsibility to restore the legitimacy of international law and ensure legal accountability for the supreme crime of aggression against Ukraine. In contrast, an internationalized national court would never be credible if the international community seeks to send the clear deterrent message that individual criminal responsibility of those most responsible for the supreme crime of aggression against Ukraine as a manifest violation of the UN Charter is essentially inevitable.

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The Need for a New Crimes Against Humanity Treaty

The core aim of this process is to draft a treaty that could require States Parties to take on specific obligations to prevent and punish crimes against humanity, duties which are not imposed by existing legal regimes. This includes incorporating a unified definition of crimes against humanity in domestic law and taking steps to prosecute them in national courts. Such crimes include acts of murder, rape, torture, apartheid, deportations, persecution, and other offenses committed as part of a widespread or systematic attack against a civilian population based on a government or organizational policy. Notably, crimes against humanity may be committed at any time, not only in situations of internal or international armed conflict.

While the Rome Statute of the International Criminal Court (ICC) has made great headway in helping to define crimes against humanity, there is a strong rationale for advancing a specific treaty on crimes against humanity: a treaty will help to harmonize existing but inconsistent national laws; fix shortcomings of the Rome Statute by expanding the definitions of existing crimes and adding new ones; enlarge the grounds of persecution; include an obligation of prevention; and strengthen the legal regimes addressing these egregious crimes by establishing an obligation to prosecute or extradite when the alleged offender is present on a State’s territory. It can also stimulate trials at the domestic level.

The Sixth Committee’s Process Should Embrace Efforts to Make At-Risk Groups Visible

The draft treaty raises several concerns. Rather than incorporating existing treaty language wholesale, States should seize the opportunity to create a more progressive legal instrument that reflects developments in both international human rights law and dynamics at the U.N. Security Council. Doing so will build a stronger treaty that embraces the realities and experiences of at-risk groups when atrocities occur.

The Definition of Crimes Against Humanity

Let’s start with the text itself. The ILC draft articles adopt verbatim the language of Article 7 of the Rome Statute into Article 2 of the ILC draft articles, which defines “crimes against humanity.” Article 2 accordingly references, within that definition, “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law.” While the catch-all phrase “or other grounds” is included, it nonetheless permits non-enumerated groups for whom international law, and its protection remit, has developed since 1998 to remain anonymously lumped together. Without the disaggregation, which is essential to amplify and elevate protection needs of highly at-risk groups, many persons remain invisible. This is particularly true for groups that receive specific protection under international law due to enhanced risk such as women, children, and persons with disabilities.

Much work has been done to amplify and render more visible the victims of serious violations of international humanitarian law and international human rights law in the years since the Rome Statute was adopted. Advancements such as the development of policy papers by the Office of the Prosecutor for the ICC on the topics of Gender Persecution, Children, and Sexual and Gender-Based Crimes demonstrate that international criminal law is not static nor siloed, but instead a responsive and evolving framework that must actively seek to include those groups who are often forgotten. These progressive developments are relevant for the upcoming treaty process and should be borne in mind by the States debating and discussing the provisions of the draft articles.

Since the adoption of the Rome Statute, the U.N. Convention on the Rights of Persons with Disabilities (CRPD) – a core human rights convention approaching universal ratification – was adopted. Of note, it contains an innovative provision (Article 11), which addresses accounting for the protection needs of persons with disabilities in situations of risk, including armed conflicts, humanitarian emergencies, and natural disasters, and incorporates international humanitarian law, international human rights law, and other international legal domains (including international criminal law, international refugee law, and international environmental law) with relevance for protection.

Specific Protection Mandates Adopted by the U.N. Security Council

Other developments within the U.N. system regarding protection are important to note. Action by the U.N. Security Council has substantially elevated specific protection mandates through the adoption of Security Council Resolution 1325 (2000) on women, peace and security,  Security Council Resolution 1612 (2005) on children and armed conflict and, more recently, Security Council Resolution 2475 (2019) on the protection of persons with disabilities. Efforts are being made across the U.N. system to adopt intersectional approaches and to move away from superficial and  primarily symbolic references to protecting an undefined and generalized “vulnerable” groups to a more direct and meaningful inclusion of persons with disabilities in all aspects of U.N. operations.

This marks a significant shift away from the previous charity and medical approaches to disability, which all but render persons with disabilities invisible. Those models viewed persons with disabilities as objects who deserve pity or consider disability as something to be “cured,” rather than simply part of a person’s identity. Research released just prior to the CRPD’s drafting demonstrates how those approaches were, and in some ways still remain, prevalent within the U.N. human rights system. By contrast, the CRPD’s approach to disability – the social model – focuses on how an individual interacts with an environment that fails to accommodate them. Using the social model, it is a lack of ramps or large print books, not a person’s mobility impairment or low vision, that are disabling. This movement towards fuller recognition of the rights of persons with disabilities necessarily extends to the right to seek justice for violations of their rights, a right that is frequently denied.

Put simply, cutting and pasting Article 7 of the Rome Statue into a new treaty on crimes against humanity does not provide for the full incorporation of international human rights norms that have developed after the Rome Statute’s adoption, including those reflected in the CRPD such as the social model of disability, into the definition of crimes against humanity. To this end, the 4th Report of Professor Sean Murphy, the ILC Special Rapporteur for the ILC drafting process,noted that a group of U.N. special rapporteurs and independent experts urged during the ILC drafting process that persecution should be broadly delineated to include “persecution on grounds of language, social origin, age, disability, health sexual orientation, gender identity, sex characteristics and indigenous, refugee, statelessness or migration status.”

It is imperative that this more inclusive definition be reflected in the text of a treaty on crimes against humanity. And this is particularly important for persons with disabilities given the CRPD’s protection obligations on State Parties. Further,efforts to make visible gender-based crimes and crimes against children, which correspond to actions to account for these crimes by international criminal tribunals, demonstrate that it is possible to account for persons with disabilities in a similar manner.

Adopting a Progressive Human Rights Framework in the Crimes Against Humanity Treaty

The omission of an explicit mention of persons with disabilities and indeed other groups recognized as specifically protected under international law and under U.N. Security Council resolutions overlooks the history of abuse they have faced. For individuals with disabilities this lurid history, includes mass murder, and targeted killing; forced sterilization; involuntary medical and scientific experimentation; use of persons with disabilities as human shields, suicide bombers and booby-traps; institutionalization, sexual violence, human trafficking and forced disappearance; and attacks against buildings dedicated to the education, health care and rehabilitation of persons with disabilities.

In the light of this, disability merits direct reference as part of Article 2(h) regarding persecution,  thereby acknowledging that persons with disabilities and atrocities committed against them must be accounted for by the international criminal law framework. The inclusion of provisions specifically protecting other at-risk groups, whether children or women who fall under specific protection mandates, also must be acknowledged.

We know from prior experience that assuming intersectional interpretations, of norms designed to accord protection to the most at-risk populations, is simply not enough. This is especially true when those underlying marginalized populations are further marginalized by being designated within an “other” category. There is ample room to acknowledge hard-won advances in international law since the adoption of the Rome Statute and to maintain visibility of groups that have, if only relatively recently, been accorded specific protection based on specific and differentiated needs.

Any move that does not advance an inclusive understanding of crimes against humanity – in an attempt to avoid conflict with the Rome Statute and existing international criminal law – will be a disservice to survivors and a major step backwards in the Sixth Committee’s current efforts to ensure more inclusive justice.

IMAGE: The United Nations headquarters stands in Manhattan in New York City. (Photo by Spencer Platt/Getty Images)

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IMAGES (left to right): Natural disaster and its consequences (via Getty Images); In this picture taken on September 28, 2022, an internally displaced flood-affected family sits outside their tent at a makeshift tent camp in Jamshoro district of Sindh province (Photo by Rizwan Tabassum/AFP via Getty Images; Trees smolder and burn during the Dixie fire near Greenville, California on August 3, 2021. – Numerous fires are raging through the state’s northern forests, as climate change makes wildfire season longer, hotter and more devastating. (Photo by JOSH EDELSON/AFP via Getty Images)

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Hybrid regimes, also known as “electoral autocracies,” are governments that endeavor to be seen as democracies but lack the fundamentals to warrant such a label. They hold elections but the playing field is rarely level, as ruling parties utilize a diversified portfolio of election manipulation tactics to secure power, including corrupted voter registration systems, intentional logistical delays, targeted violence, strategic results tampering, and compromised electoral management bodies.

Hybrid regimes pose a thorny policy challenge to the United States. In 2022, almost one-half of countries globally (72 in total) met the definition of “hybrid” or “electoral autocracy” and were present in every geographic region. Examples include Angola, the Democratic Republic of Congo (DRC), Nigeria, Mexico, El Salvador, Egypt, Turkey, Iraq, Pakistan, Bangladesh, and the Philippines.

Unfortunately, since these governments hold elections and display other trappings of democracy, some policymakers give them a pass on their democratic track record -– especially if the country is relevant to other American interests.

This is short-sighted and counterproductive, even –- and especially — for U.S. national security. Consider the case of Egypt: despite receiving billions in U.S. security assistance, the Egyptian government has been offering to sell arms to Russia to aid the Kremlin’s illegal war in Ukraine, in direct conflict with American policies. It is also exceedingly difficult, if not dangerous, for U.S. companies to invest in or access the markets of hybrid regimes. The opaque and compromised nature of institutions common to these States often results in unclear or biased regulation. For example, while Nigeria has the fastest-growing population in Africa and a market ripe for U.S. exports, corruption and biased regulation make it difficult for U.S. companies to operate there.

Failing to address the democratic deficiencies of hybrid regimes sets up the United States for long-term strategic failure and hinders American economic prosperity. To avoid these outcomes, the United States must carve out a new path forward that preserves near-term U.S. interests while also pressing these States to make democratic progress. After all, there is hope for hybrid regimes. As a recent study notes, “In the face of the global wave of autocratization, data shows that no less than eight countries are bouncing back and making U-turns … Cases like these raise some hope for a future reversal of the last 20 years’ downward trend towards autocratization.”

Thwarting US Interests

Hybrid regimes are less likely to uphold the interests of the United States and its democratic allies on the world stage. Of the 72 hybrid regimes, only 20 voted to remove Russia from the U.N. Human Rights Council in April 2022 over the full-scale invasion of Ukraine. Of the countries who joined with the United States in a U.N. General Assembly committee to condemn China’s human rights abuses in Xinjiang in October 2022, only four were hybrid regimes.

Hybrid regimes also are more prone to internal conflict and instability because they often lack legitimacy among politically marginalized groups (and sometimes large swaths of the population). They are ill-equipped to effectively handle security challenges –- often resorting to heavy-handed tactics that inflame violence –- and have weak institutions that are unable to challenge abuses of executive power.

The susceptibility of hybrid regimes to political violence and instability is perhaps most acute in sub-Saharan Africa. According to an analysis of 2022 data, hybrid regimes experienced almost three times as many conflict incidents and five times as many conflict fatalities compared to stronger democracies. Analysis of data for the past decade shows that hybrid regimes in sub-Saharan Africa are seven times as likely to experience a coup or attempted coup compared to democracies.

The Flawed Approach to Hybrid Regimes

As the United States increasingly engages in strategic competition with China and its authoritarian model, it must remember that it is free people and democratic societies who are its most valuable allies on the global stage. Premature acceptance of sub-standard elections and willful ignorance of democratic backsliding may provide short-term bilateral gains, but in the long term serves to further separate the people in these countries from the United States, eroding affinity between our peoples, and increasing risks of conflict and instability that weaken current and future allies.

It’s important to note the distinctions between hybrid regimes and authoritarian regimes, which do not hold plausibly competitive elections (if they hold elections at all) for the chief executive and the legislature and where institutions have little-to-no ability to check the power of the executive. This distinction enables the international community to minimize the democratic failures of hybrid regimes.

An example is the tendency to judge elections in hybrid regimes as “good enough” unless the fraud and violence are egregiously obvious. In February, the U.S. State Department rushed to congratulate the declared winner of Nigeria’s 2023 presidential election, even though the election was widely criticized by observers for targeted violence, lack of transparency, significant voter disenfranchisement, and outright vote manipulation in some states.

The United States has applied this low bar in other recent elections. Angola’s August 2022 presidential election saw the half-century rule of the MPLA party extended by another five years, in an election where the ruling party controlled the media and courts, imposed worrying changes to the vote-tabulation process, and heavily obstructed efforts to observe the election. Despite these red flags, the U.S. Embassy quickly congratulated the declared winner and commended “the millions of Angolan voters who cast their ballots in this election, and in doing so demonstrated their commitment to strengthening democracy.” Following Tunisia’s December 2022 parliamentary elections, which some international observers labeled a “sham,” the State Department issued a vanilla statement, noting low turnout and the need for greater political inclusion, but failing to cite any other major issues that impeded the credibility of the process, such as barriers to political party participation and egregious restrictions on the press.

Such omissions have immediate and direct consequences for U.S. security and economic interests. For instance, in Nigeria, the widely disputed election results and the high levels of regional disenfranchisement of voters will likely compound regional and sectarian grievances, fueling increased conflict and destabilization, and diverting even more resources and attention of the United States and like-minded partners to combat instability. And in Angola, the extension of MPLA rule under questionable circumstances could lead to continued democratic backsliding and undermine prospects for economic reform, harming U.S. economic interests, including trade (already in significant decline), and could make the country more vulnerable to the malign influence of Russia and China.

Sadly, hybrid regimes most often result from democratic backsliding, rather than autocracies moving toward democratic reform. Of today’s 72 hybrid regimes, 20 were considered stronger democracies 20 years ago, while eight were considered closed autocracies.

Democratic backsliding is usually a gradual process. The international community’s muted response to closing space in hybrid regimes tends to facilitate continued backsliding. Over the past five years, there has been a worrying global increase in the number of authoritarian regimes.  This suggests that early action to address the democratic deficiencies of hybrid regimes is critical to forestalling autocratic consolidation.

Failing to make the distinction between hybrid regimes and democracies, and failure to comprehend trajectories of democratic backsliding, undermines the intent of democratic initiatives like the Biden administration’s Summit for Democracy. At the most recent summit, countries that have been experiencing years of democratic backsliding and refuse to publicize their commitments to democracy (such as Nigeria and Philippines) are given equal standing with countries that are actively and transparently consolidating democracy. Of the 120 countries invited to participate in the 2023 Summit for Democracy, 25 were hybrid regimes. Only about half of these countries publicized their commitments from the summit. And of the stronger democracies invited, almost 40 are countries that experienced notable democratic backsliding over the past five years and are at increasing risk of becoming hybrid regimes this decade.

Democracies are not only more stable than hybrid regimes, but they also enjoy better economic growth, equality, and educational achievement. The failure to adequately differentiate hybrid regimes from stronger democracies fuels the counterproductive perception that “democracy fails to deliver,” when it is in fact the failure to achieve meaningful democracy that prevents so much of the world from enjoying its dividends. 

Walking and Chewing Gum at the Same Time 

The United States and allies must balance their cooperation with hybrid regimes, when it is necessary at all, with a push for those governments to reform and realize broader democratic progress. These aims are not contradictory, but complementary and central to advancing U.S. objectives. Achieving this balance will require prioritizing respect for democratic practices, institutions, and norms when determining how to engage hybrid regimes. Democracy will not always trump other factors, but it should be moved up the rank order of priorities.

There are practical steps the United States and like-minded allies can take -– using diplomacy and foreign assistance -– to advance near-term pressing issues while targeting democratic deficiencies that make hybrid regimes problematic for American interests.

For instance, the United States and G7 allies should make clear they will not welcome with open arms leaders chosen through dubious, sub-standard elections. From Washington to London, leaders should get serious about issuing public sanctions, including asset freezes and visa bans, for malfeasance during elections. On the flip side, the U.S. and allies should make better use of high-level diplomatic engagement, such as leveraging the legitimacy conferred by Cabinet-level visits, to incentivize governments to make changes and adhere to international democratic best practices.

These steps can be impactful while not undercutting cooperation on pressing matters. In Nigeria, for instance, the United States can engage the government to achieve priorities via the U.S. Ambassador and U.S.-Nigeria Binational Commission (BNC), a forum established in 2010 to discuss a range of interests. The Secretary of State need not make plans to visit Abuja to meet newly elected President Bola Tinubu while key court decisions -– and a potential independent audit -– are pending on the results of the recent election.

The United States and G7 allies should pay more rigorous attention to elections in general. Rather than accepting elections as a continuation of the status quo, the West should view electoral processes as critical moments to correct or continue countries’ democratic trajectories, and apply commensurate attention, pressure, and incentives. One step in the right direction would be to more explicitly and publicly link future foreign aid funding used to support elections in such countries to recipient governments agreeing to abide by established electoral standards, including enforcement of election law, equitable access to voting, and transparency in reporting election results and election data. Failure to link foreign assistance to meaningful reforms results not only in sub-par elections and wasted U.S. taxpayer dollars, but also provides diplomatic cover for election malpractice and malfeasance.

Foreign aid has an important role to play in advancing U.S. interests in hybrid regimes by helping cultivate and reinforce democratic practices and norms outside a government in power. The United States is therefore smart to invest in civil society-led advocacy campaigns that hold leaders accountable and in efforts to strengthen political parties that can contest elections and offer an alternative to the status quo.  Yet the United States can do more to couple such capacity building via foreign aid with creating the political will for reform. While building democratic capacity can incentivize and enable the will to reform, capacity should not be viewed as an end in itself; this is a convenient, but short-sighted and counterproductive, approach. Diplomacy and foreign assistance can help enable this political will through a combination of incentives, pressure, and advocacy campaigns, as well as identifying and equipping rising political stars unafraid to push for change.

Looking Forward

As the U.S. and allies navigate relations with hybrid regimes, they should approach evaluating a country’s democratic performance as science and not art. Objective third-party evaluations of democratic performance are widely available but largely ignored in U.S. policymaking. Robust and credible civil society organizations proliferate in many hybrid regimes; yet despite many of these organizations receiving assistance from the United States, their warnings about democratic backsliding are regularly disregarded. The United States should pair support to these organizations with listening to their perspectives -– to the extent they reflect the people’s perceptions and expectations of democracy -– and account for their views in the policymaking process.

U.S. officials must resist the convenient but inaccurate narrative that the hybrid regimes of the world are slowly but surely moving in the right direction. Evidence of backsliding in the past 10 years has shown that is far from certain. A narrative of wishful thinking only results in misleading analysis and poorly targeted foreign assistance and diplomacy, serving to reinforce one-party rule and compound public grievances around the world. Using rigorous metrics can help make progress in this area. 

Major policy initiatives like the Summit for Democracy should require concrete commitments from all participants and demonstrable democratic progress against these commitments. These initiatives should include public accountability for democratic backsliding and for failure to achieve reform objectives. At minimum, governments on prior Summit invite lists who go on to enable backsliding should not be included moving forward.

Ideally, the United States should reward allies that make tangible democratic advances with tangible benefits. For example, the United States should consider re-initiating free-trade agreement discussions with Ecuador if President Guillermo Lasso’s government makes progress on anti-corruption and continues to consolidate democracy. Doing so would reward a key ally in the region and one of the remaining democratic bright spots with tangible changes that benefit the Ecuadorian people and U.S. interests. Similar carrots could be held out for progress in a range of other contexts as well. Participants should also commit to stand with democracy against autocracy on the world stage. Mitigating democratic backsliding and combatting authoritarianism requires the concerted efforts of a global community.  

With major elections coming up in several hybrid regimes this year and next — including Turkey’s planned runoff election on May 28, as well as balloting in DRC, Pakistan, Bangladesh, Algeria, Egypt, Tunisia, Mexico, and El Salvador — the United States must think carefully about how it will assess and react to these elections, and whether perceived short-term bilateral gains will truly be worth the long-term costs.

Going forward, while it is important for the United States to shore up its alliances with the Philippines and other partners to thwart China’s malign influence and kinetic threat, U.S. leaders also must be acutely aware of the democratic backsliding that is occurring in these hybrid regimes and use American leverage to counter it. Without such clear accountability and seriousness in upholding of democratic values, the United States can expect to have “allies” and “partners” that are not only less free and stable, but also distinctly unreliable.

IMAGE: US Vice President Kamala Harris (L) and Zambian President Hakainde Hichilema are seen outside at the State House in Lusaka on March 31, 2023 after a press conference. President Hichilema asked for US help to expedite debt restructuring negotiations with the country’s creditors.  (Photo by SALIM DAWOOD/AFP via Getty Images)

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A diverse cross-section of States engaged substantively on a number of issues, and it was clear by the conclusion of the session that positive momentum continues to build. As State representatives and civil-society organizations meet in Ljubljana, Slovenia, to discuss a parallel process, negotiations for a multi-lateral mutual legal assistance treaty, we hope that it serves as a springboard to further support the momentum achieved on crimes against humanity.

Organization of the Work

As readers of Just Security will recall, on Nov. 18, 2022, the United Nations General Assembly’s Sixth Committee (the legal committee) adopted Resolution 77/249 on the International Law Commission’s (ILC’s) Draft Articles on crimes against humanity (CAH Draft Articles), creating a two-year process for their debate and discussion within the committee. The first session of that process took place April 10-14.

Resolution 77/249 set the purpose of these sessions to be the exchange of “substantive views” by member States on all aspects of the draft articles and called for these interactions to proceed in an “interactive format.” The Sixth Committee’s Bureau, led by Mozambique, developed a program of work that organized the meetings into five substantive clusters: (1) introductory provisions; (2) definition and general obligations; (3) national measures; (4) international measures; and (5) safeguards. The program eliminated any general debate, and imported from the ILC its practice of “mini-debate” as a way to encourage state-to-state interaction on the points raised and positions taken. The three co-facilitators, Anna Pála Sverrisdóttir (Iceland), Sarah Zahirah Ruhama (Malaysia), and Edgar Daniel Leal Matta (Guatemala) presided and summarized the meeting at its close.

Robust Engagement by Delegates

Prior to the session, chaired by Pedro Comissário Afonso of Mozambique, some delegates expressed concern that States would not find enough to discuss for the full five days, given the novelty of the process. That concern was swiftly allayed as discussion of Cluster 1 (preamble and scope of the Draft Articles) extended through the first day until mid-morning of day 2. The week-long debate proved interesting and lively, and a briefing from the Secretariat on the ILC’s recommendations provided delegates with background information and context to help frame the discussions. States were well prepared to attend, because many had participated in a workshop, hosted by Germany and France, on the eve of the resumed sixth committee session.

Unsurprisingly, most interventions were positive, given the strong showing of support for Resolution 77/249 in November 2022, with 86 co-sponsor, and a total of 100 States supporting the draft text in some measure. Not all interventions were complimentary of the work or the meeting’s organization. As the week progressed, however, and several lively mini-debates occurred, occasionally veering into humor as well as legal text and philosophy, the tension in Conference Room 4 was reduced, and the meeting concluded on a positive note.

Open Questions

Nature of Crimes Against Humanity: Most, but not all, delegations were prepared to recognize that the prohibition of crimes against humanity rises to the level of a jus cogens norm, meaning that States consider it a fundamental rule of international law that must not be violated. All delegations agreed on the importance of preventing such crimes, and the ILC’s text was generally praised in this regard, although many States thought either more comprehensive provisions were needed or more clarification was required. Sierra Leone, for example, mentioned the need for capacity-building measures. Other delegations suggested that the principle of non-interference should receive more emphasis.

Definition and Relationship to the Rome Statute: The explicit reference to the Rome Statute in the draft preamble received a mixed reaction. While some States welcomed the reference, others argued that this was either an unnecessary provision, or, more fundamentally, that the Rome Statute is a “strait jacket” that does not cover certain activities that might affect future generations, such as deforestation or other environmental crimes. Most delegations agreed that the definition should build upon Article 7 of the Rome Statute but seemed willing to consider the possibility of certain departures, including, for example, adding groups to those specifically protected under the crime of persecution, including indigenous groups and the disabled, or modifying the definition of enforced disappearances. India proposed consideration of terrorism, and Sierra Leone the crime of slavery and the slave trade. The Commission’s inclusion of a “without prejudice clause,” in Article 2(3) was generally viewed positively.

Gender Issues: Most States approved of the Commission’s decision to delete the definition of gender (a binary and regressive definition that does not accord with understandings of gender today) in Article 7(3) of the Rome Statute from the proposed treaty text, although some spoke in opposition to that change. Some States also proposed changes to language and substantive terms that could make the treaty provisions more gender-sensitive and protective of victims of sexual and gender-based violence. For example, both Canada and the United Kingdom proposed enumerating forced marriage in Article 2 of the ILC draft and raised the idea of amending the limited definition of forced pregnancy to bring it in line with judicial rulings and other developments. Canada also suggested that the fair treatment of the offender, set out in Article 11 of the draft, should also include provisions relating to fair treatment of survivors and witnesses. Belgium expressed concern about the marginalization of LGBTQIA+ individuals.

National Measures: In terms of Cluster 3 (national measures, Articles 6 through 10), the debate was wide-ranging and detailed. Draft Article 6 (criminalization by states) is a complex 8-paragraph text that received a great deal of attention. Included in the ILC’s provisions are not only a duty to enact implementing legislation, but to abolish any applicable statutes of limitations, provide appropriate penalties, eliminate superior orders and official position as defenses, and create modes of liability appropriate to international crimes. The United Kingdom suggested that conspiracy and incitement might be added to this provision; other states focused on penalties, and several raised questions about immunities. Participants also debated whether the provisions on establishment of national jurisdiction in Draft Article 7 should indicate which states have priority in particular cases, as well as with respect to the duty to extradite or prosecute in Draft Article 10.

Mutual Legal Assistance and Enforcement: The meetings on international measures (Cluster 4) generated the least discussion, perhaps due to its highly technical nature. Some States observed that the treaty should be succinct, like the Genocide Convention so that it would be easily comprehensible. Most seemed to feel that the text was “solid” and offered a good basis for negotiation. The U.K. suggested that survivors should be at the heart of the evidence-gathering process. The U.K. and Sierra Leone stated that a monitoring mechanism could be helpful in promoting enforcement of the treaty.

The legality of the death penalty spurred debate in the context of requests for the extradition of potential suspects to States that permit the application of the death penalty. Singapore defended its use and legality under international law; others (such as the European Union) objected. In terms of dispute settlement, while some states thought the “opt out” provision included in Draft Article 15(3) was positive, others, such as Germany, suggested that ICJ jurisdiction should be compulsory.

Safeguards: In terms of safeguards (Cluster 5), States were generally positive about the Commission’s proposals. The EU suggested that Draft Article 12 (victims, witnesses, and others) could be more ambitious by including additional provisions on children’s rights and gender. Colombia suggested additional provisions could be included in Draft Article 11 (fair treatment of the offender), and several States commented on the protections of Draft Article 5 against returning individuals to territories where they might face threats to life or liberty (non-refoulement). Most States supported the draft article, but some objected, including Jordan, which thought the language was overbroad and should be redrafted, and Iran, which felt this was a human rights protection not applicable to crimes against humanity. Reparations was another topic that was extensively addressed.

Next Steps

In the Sixth Committee: This October, the Sixth Committee will hold a general debate on the topic during its normal session, and States will have the opportunity to submit written comments by December 31, 2023. Next April, the Sixth Committee will once again meet in a resumed session for six days. Finally, in October 2024, the Sixth Committee will take a decision on the ILC’s recommendation that a treaty be elaborated on the basis of the Draft Articles. While the October 2022 Resolution was adopted by consensus, it remains to be seen whether consensus will be achieved in 2024, or whether States wishing to move forward will need to proceed to a vote.

Achieving a positive result next October will require that the momentum created by the April 2023 session be maintained. It is also critical to ensure robust participation by States and civil society in all subsequent steps. Civil society will be important in providing legal expertise to States on key open questions, including those outlined above, as well as for advocacy to help a diverse range of States understand the importance of the treaty. And while State engagement was strong and diverse at the recent resumed session, it is vital that more States that may not have the capacity of larger States participate in next April’s resumed session, including more African, Asian, Caribbean, and Pacific-Island States, as well as more representatives of civil society.

Relationship to the Mutual Legal Assistance Treaty: Related upcoming negotiations on an initiative for an MLA treaty on genocide, crimes against humanity, war crimes, and other international crimes, scheduled for May 15-26, 2023, in Ljubljana, Slovenia, offer an opportunity for States to reaffirm their commitment to the core values and provisions of the ILC Draft Articles on Crimes Against Humanity. Yet, as Amnesty International noted in its recent paper setting out recommendations for the conference, there is a risk that the provisions incorporated into the treaty will not take into consideration the fuller conversation now occurring at the United Nations particularly regarding the scope and definition of crimes against humanity. Furthermore, at 87 articles, a treaty that was originally focused on the technicalities of mutual legal assistance has become an extremely long and complex instrument; one option is for States to get behind a version of the treaty proposed by Switzerland in 2020: a “pure MLA Convention focused on the cooperation between States.” At the very least, States and civil society participating in the Ljubljana conference should ensure that their work in Ljubljana bolsters and complements the broader ongoing work at the United Nations on crimes against humanity.

At the end of the April session on the ILC Draft Articles in New York, Amadou Jaiteh, Gambia’s legal adviser (one of Resolution 77/249’s two co-facilitators with his Mexico counterpart, Pablo Arrocha) said he had found “renewed hope” in the process. He cited constructive engagement throughout the weeklong session, and importantly, observed that the “differences are getting narrower and narrower.” Let us hope that continues over the next 18 months. As atrocities continue in every part of the globe, not only in war but also in peacetime, the charge of crimes against humanity is often the only one that fully captures the harm to victims, whether it be from murder, deportation, rape and sexual violence, disappearances, torture, and other inhumane acts. The absence of a stand-alone crimes against humanity treaty is thus a significant gap in the international legal architecture that needs to be addressed as quickly as possible.

IMAGE: Venezuelan Gregorio Chinchilla shows a portrait of his late son Anrry Gregorio Chinchilla, 30, during an interview with AFP in the Coche neighborhood of Caracas, on March 11, 2023. The investigation at the International Criminal Court (ICC) for crimes against humanity in Venezuela was at a crucial moment: prosecutor Karim Khan had asked to keep the case open, arguing that there is a “reasonable basis” to believe that there were “systematic” human rights violations in the country. (Photo by MIGUEL ZAMBRANO/AFP via Getty Images)

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It was a grim preview of worse that could still be coming, and not only for Turkey. Many democracies are now threatened by autocratic populists like Erdogan who refuse to leave office fairly and peacefully, bringing their countries down with them. This is a historic time for the citizens of Turkey and other backsliding democracies to preserve their freedom, and for the United States and other European and NATO allies to speak rapidly, loudly, forcefully as autocratic efforts unfold.

Erdogan has been in power for 20 years, during which time he has increasingly relied on repression — Turkey ranks among the countries with the greatest numbers of imprisoned politicians, journalists, activists, and other civic actors — and autocratic control over state organs to ensure that elections are highly unfair, even though voters remain free to cast ballots that matter. He uses an autocratic playbook that includes abusing states of emergency to expand his executive power, capturing regulatory bodies to ensure party control over public airwaves, enacting draconian new laws to monitor and regulate speech on the internet, steering public expenditures into the hands of cronies who pour it back into his reelection campaigns, and manipulating polling locations to make voting more difficult and intimidating in heavily-opposition areas. As an example of the latter, in the Kurdish southeast, voters have been forced to pass through security checkpoints where soldiers brandishing machine guns are instructed to check voter IDs, looking for anyone wanted for arrest.

At Freedom’s Edge

The result has been that each successive Turkish election since 2011 has been more unfair than the last, and the country is now on the brink of descending into fully unfree authoritarianism. Whether or not the election this Sunday is free at all, if Erdogan wins, it is likely to be the last free Turkish election of his lifetime. He would probably continue the trend of the past dozen years by doubling down on his dictatorial direction. He may dispense with free elections, on the theory that they have taken him as far as possible — he once likened democracy to a train, a vehicle to reach a destination and then disembark. And if Erdogan wins despite his unpopularity – he currently is weighed down by his abysmal economic policies and failures related to the February earthquake — and despite an uncharacteristically unified opposition, a critical mass of Turks would stop regarding elections as free and meaningful.

With this election presenting the strongest challenge yet to his incumbency, Erdogan has already deployed his usual tactics to tilt the balance in his favor. One opposition party remains under multiple criminal investigations by prosecutors loyal to Erdogan, its leader has been jailed for years, and dozens of its members and party officials have been detained in recent weeks. The candidate who was dodging rocks last Sunday, Istanbul Mayor Ekrem Imamoglu, is running for vice president rather than president — even though he was seen by many as the most promising competitor for the job — because he could face obstacles to assuming office, as he’s being prosecuted for allegedly calling the politicized election authorities “fools” after they vacated his first election as mayor.

After Erdogan was down 10 points in the polls less than two months ago, he used his pervasive influence over 90 percent of Turkish media to end public debate about the earthquake and inflation and instead flood the airwaves with glorification of all the ways he has made Turkey great again. Now the race has tightened to a dead heat against the opposition’s presidential candidate, who has enjoyed only 32 minutes of airtime in April compared to Erdogan’s 32 hours.

The tumult on Sunday raises the ominous possibility that if the usual autocratic tactics fail to secure a clear victory, the government could rely on violence and intimidation to stay in power. Several parties in Erdogan’s coalition have ties to nationalist paramilitaries or Islamist groups that have engaged in political violence in the past. The day before that rally, the head of one of those parties said about the opposition, “These traitors will get either aggravated life sentences or bullets in their bodies.” On Sunday, Erdogan held a rally at which he played a deepfake video that depicted leaders of a terrorist organization singing the campaign song of the opposition. Erdogan warned, “My people will not allow drunks and boozers to take the stage … My nation will make the necessary response on May 14. We will not allow [opposition candidate Kemal] Kilicdaroglu, who is hand in hand with terrorists, to divide our homeland.” That same day, a leading Turkish academic was detained for having tweeted about his country sliding into authoritarianism. Sunday also brought multiple reports of parties allied with the regime allegedly perpetrating violent attacks on opposition campaign staffers in their vehicles — tires slashed, windows broken, passengers beaten with clubs — and that was before the stoning attack at the vice presidential candidate’s rally.

Heads Up for Democracy

This violence and manipulation are the modern incarnation of what it looks like when a democracy is in the process of collapsing into dictatorship, a form of government from which there is typically no peaceful return. In 2016, it briefly looked like the classic military coup was back, when a faction within the Turkish Armed Forces tried and failed to depose Erdogan. But the most lasting repercussion of that coup attempt was Erdogan’s repressive crackdown and further concentration of power, autocratic efforts that are culminating in an electoral process that is difficult even to call free, let alone fair.

Voters in other struggling democracies set to hold elections next year — India, Mexico, or Georgia, for example — should not look away, nor should those in countries that are still fully free but in which autocratic candidates in Erdogan’s mold are currently running for the highest office, from Poland to the United States. The lesson from Turkey is that autocrats like Erdogan ultimately have nothing to offer but corruption, repression, and eventually violence. Americans traditionally assume that such unfortunate events only happen overseas. But with the United States having had its own taste of violent challenges to the democratic process on Jan. 6, 2021, they have no excuse not to see repressive autocracy in Turkey as a ghost of U.S. elections yet to come under a future administration of Donald Trump or any other U.S. president insufficiently committed to democratic restraint.

Nor should the official international community look away. The U.S. government and key NATO allies have maintained disciplined silence to avoid giving Erdogan opportunities to drag Western powers into the election. The time to use their voice is probably coming in the days ahead, at the moment when reports emerge about threats to the integrity of the electoral process. They should be on the lookout for incidents that would echo autocratic behaviors perpetrated during past Turkish election days and other national events. That could include, but isn’t limited to, the state electoral authority loyal to Erdogan changing rules for ballot counting, Erdogan’s media mouthpieces prematurely or dubiously calling the election in his favor, Erdogan losing and refusing to concede, the Turkish government shutting down access to the internet or social media platforms, or the government and its thugs violently suppressing pro-democracy protests.

Election observers, the Biden administration, and NATO allies must be prepared to publicly denounce any such autocratic efforts as soon as they occur, and privately convey to Erdogan and his senior officials the severe consequences of standing in the way of a free electoral process. The alliance must deliver timely and vigorous diplomatic pressure to stand by the Turkish people in what could be their last stand for political freedom.

IMAGE: Kemal Kilicdaroglu, leader of the Republican People’s Party (CHP) and the presidential candidate of the Main Opposition alliance, speaks to supporters at a rally while campaigning on April 30, 2023 in Izmir, Turkey, for the presidential and parliamentary elections scheduled for May 14, 2023. The Kilicdaroglu-led Nation Alliance represents six opposition parties in next month’s election against President Recep Tayyip Erdogan’s 20-year rule. (Photo by Burak Kara/Getty Images)

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Decades later, Ferencz’s prediction is proving all too true. Russia is waging an unlawful war of aggression against its sovereign neighbor Ukraine. And all the while Russia is using its permanent status on the Security Council and its right of veto to shield its bloody trail of war crimes, which include killing, raping, torturing civilians, abducting Ukrainian children, and looting.

Fighting Impunity

While Russia has successfully blocked any action against its aggression in the Security Council, the U.N. General Assembly resolutions, adopted with an overwhelming majority, have been instrumental in condemning Russia’s crimes. Most recently, in February, 141 countries supported the establishment of a just and lasting peace in Ukraine, in full conformity with the U.N. Charter. Operational Paragraph 9 of this resolution demands that Russia must be held accountable for most serious crimes committed in Ukraine.

Fighting impunity has become no less important than reinforcing Ukraine’s self-defense (in full accordance with Article 51 of the Charter). By now, criminal proceedings against hundreds of suspected perpetrators have been initiated in Ukraine and elsewhere. A Joint Investigation Team has been established as well as the International Center for Prosecution of the Crime of Aggression against Ukraine. The International Criminal Court (ICC) has opened an investigation into the situation in Ukraine on war crimes, crimes against humanity, and genocide, and issued arrest warrants for Russian President Vladimir Putin and the Russian Commissioner for Children’s Rights, Maria Lvova-Belova.

And yet, there is a missing link, a judicial loophole – impunity for the crime of aggression that unleashed all the other crimes and atrocities in Ukraine.

Creating an International Tribunal to Prosecute Russian Aggression

If the Security Council does not act, only a special international tribunal for the crime of aggression against Ukraine can overcome the immunity conundrum and prosecute Russia’s top leadership for the mother of all crimes – the crime of aggression. A tribunal based on an agreement between Ukraine and the U.N. Secretary General, endorsed by the U.N. General Assembly, would enjoy sufficient international legitimacy allowing to go after top Russian leaders, including the Troika (the head of State, head of government, and minister for foreign affairs). They are the real masterminds of the aggression. It has been done before via different paths, for example the Special Court for Sierra Leone and the Cambodia Tribunal.

In Legal and Political Terms, an International Tribunal is the Best Option for Accountability

Other alternatives face legal and political roadblocks. The idea of a so-called hybrid tribunal or “internationalized national tribunal” goes against the Ukrainian Constitution (Art 125) and therefore cannot be established, at least in the foreseeable future. It is likely that Russia will establish a replica tribunal in response to the hybrid model. And an attempt to argue that a similar tribunal would need to be established for Iraq, Libya, Afghanistan, and other countries cannot be ruled out despite the prohibition of retroactive application of criminal law. Still, Ukrainian leadership, civil society and victims of the aggression have all spoken in support for an international tribunal. In fact, the same has been heard from numerous Russian opposition figures.

Without full accountability assured by a proper tribunal, there will be no justice and therefore no chance for a just and lasting peace in Ukraine. Postponing justice to a later stage (for instance after the war or after the current Troika leaves office) would only encourage Russia to continue its aggression. It is paramount to anchor the inevitability of prosecution of the current Russian leadership as deep as possible in the international legal order and under international law. This would prevent the perpetrators of the crimes already committed from escaping justice, even if a new Russian leadership with vastly different political inclinations emerges, which is highly unlikely.

Resolve and Deterrence are the Best Remedy Against Russia’s Threats and Intimidation

Russia’s original goals – regime change in Ukraine and extermination of the Ukrainian nation – have not changed. If anything, Putin’s obsession with re-establishing Russia’s former imperial grandeur by bringing its “historic lands” together, and thereby consolidating his personal role in history, has grown even more profound. Either States work toward the establishment of a just and lasting peace in Ukraine or entertain a false hope – fed by the aggressor – that a deal with Putin is possible. The latter option is futile in itself as it would resemble offering Adolf Hitler a face-saving opportunity and negotiations during WWII.

The fear that Moscow can “retaliate” with the usual bunch of lies and propaganda does not overweigh the moral obligation to do what is right for global peace and security, if not for the sake of the millions of victims of the Russian aggression.

The arrest warrants issued by the ICC did not produce any escalation that some had feared. Instead, Russia has attempted to undermine the ICC and its warrants, including by inviting Lvova-Belova to participate in the Security Council’s informal meeting in early April. Nor is there anything new about Russia’s nuclear sabre-rattling, as the Kremlin has used nuclear blackmail with the intention to paralyze the willpower of those helping Ukraine since the full-scale invasion started. In the end, nuclear threats have very little to do with the establishment or non-establishment of a proper tribunal. Even entertaining the idea that the leadership of nuclear States cannot be brought to justice inherently risks trashing the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and undermines non-proliferation. States should not wait for another world war to happen to discredit aggression.

The claim of polarization and selectivity seems unfair, as the whole aim of the undertaking is universal – to ensure justice and delegitimize aggression as a tool of statecraft, as it was after WWII with the Nuremberg trials. The mere establishment of the tribunal itself would be a powerful deterrent against aggression across the globe as it would send a clear political message to potential future aggressors. The same deterrence is badly needed as a credible remedy against further escalation of the current conflict as what is happening in Ukraine fits into a wider behavioural pattern of Russian invasions (2008 Georgia, 2014 Crimea, 2022 Ukraine).

During the last half-century, there has never been a better opportunity to fight back the resurrection of aggression in international affairs. The lasting peace after WWII was not “just” for Estonia and for several other countries because for us, a decades-long brutal Soviet occupation, deportations, colonialization, and russification followed. Today’s aggression is a direct result of atrocity crimes committed by the Soviet Union before, during and after WWII that went unpunished. There was never a proper tribunal to prosecute Soviet totalitarian crimes, and impunity in the past has led to the crimes of today. This vicious circle needs to end.

Seeking the Political Will to Establish a Tribunal

Some claim that States should not move forward because it will be difficult to gather enough votes at the General Assembly. But this is mere speculation without a meaningful attempt to prove the contrary. Meanwhile, the required vote count is a two-thirds majority of the member States present and voting (which means that at a practical level, only “yes” and “no” votes actually matter). In private conversations and during our briefings for the wider U.N. membership, there has been no straightforward rejection of the idea of an international Tribunal. To the contrary, when it comes to accountability to preserve the current legal order with the U.N. and Charter at its core, countries have been rather united and supportive.

The initial reluctance to deal with impunity in Ukraine seems to be receding as our hesitation would only fuel the ongoing aggression. Ukrainians have been paying an extremely high price with their lives for our hesitation already. If States want to achieve a just and lasting peace in Ukraine, and delegitimize aggression again, we should shake off our fears and find the political will to collectively reinforce the legacy of Nuremberg through action by the General Assembly. It is time to move past talk of “support for accountability.” The least we can do when the Core Group for Accountability meets in Tallinn on May 12, is to have an open and serious discussion about our common path forward without hiding our fears and hesitation behind legal arguments. In the end, seeking justice and accountability is a question of political will.

IMAGE: Screens display the vote count during the Eleventh Emergency Special Session of the United Nations General Assembly on Ukraine, at U.N. headquarters in New York City on Feb. 23, 2023. (Photo by Angela Weiss / AFP via Getty Images)

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This year marks both the 30^th anniversary of World Press Freedom Day and the 75^th anniversary of the Universal Declaration of Human Rights. So, this is a doubly fitting year to be fighting to maintain freedom of expression where it exists, to re-establish freedom of expression where it has been suppressed, and to support freedom of expression across the world. Sadly, 2023 is also a year in which it has become more necessary and important than ever to carry on this fight.

Freedom of expression is protected in international law, because, without it, democracy and the rule of law wither away. A free and uncensored press is a vital aspect of this freedom: independent media hold governments to account, facilitate the enjoyment of other fundamental freedoms, and shed light on matters of public interest. And different parts of the media also monitor each other.

The media have rightly been described as the watchdogs of democracy, because journalists often highlight democratic deficits and demand accountability from elected and unelected officials. This is the fourth estate.

The right to freedom of expression, including the right to seek, receive, and impart information, online and offline, is also an enabling right without which most other fundamental human rights cannot be properly enjoyed. Exercising these interdependent freedoms, without fear or unlawful interference, is part of the bedrock of a modern democratic and civilized society.

States that strive for balanced social progress and democratic stability should not just protect the right to freedom of expression within their laws and constitution; wider and sustained action is required to ensure that freedom of expression is effectively guaranteed through independent and impartial justice systems. That means any interference with freedom of expression must have a legal basis, meet the standards of strict necessity and proportionality to the danger which the restrictions address, and be subject to independent review.

That is the conceptual framework.

Today’s reality is that civil liberties continue to decline. And this is a global problem. Recent data from Freedom House show that infringement on free expression is one of biggest drivers of the democratic recession being experienced across the world. Among the many rights under attack worldwide during the past 17 consecutive years, freedom of expression — and, in particular, media freedom — appears to have declined more than any other right.

The explanation for this is simple: media freedom poses a genuine threat to corrupt and undemocratic regimes, and accordingly, many governments adopt measures which stifle press freedom and encourage censorship. According to UNESCO, more journalists today are killed outside war zones than inside them, with a mere one in ten such murders resulting in prosecution.

Many journalists today operate in fear of reprisals, facing arbitrary deprivations of their liberty or physical attacks – or even murder — simply for doing their jobs. Legitimate reporting by journalists, often in the public interest, is routinely undermined, with many facing intimidation and harassment through vexatious legal action by State and other powerful actors. Further, regulatory and administrative processes are being developed by States to target independent media in the form of economic and commercial regulations. Even in some democracies, journalists and media workers receive inadequate protection from intimidation and violence.

Add to this the increased challenges we face in the digital world. The internet is one of the principal means by which individuals exercise their right to freedom of expression today. Many governments have introduced repressive laws to the online sphere and adopted invasive technologies to monitor digital communication. They have also sought to control the internet, through shutting it down or slowing it down, or simply removing content inconvenient to the government of the day. All the while, journalists are targeted and harassed online with impunity.

In 2019, the Media Freedom Coalition was established as an international partnership of governments working together to advocate for media freedom and for the safety of journalists, pledging also to hold accountable individuals and governments that harm journalists for doing their jobs. The High Level Panel of Legal Experts on Media Freedom, was convened by the Coalition co-chairs to act as the Coalition’s independent legal advisory body. A Consultative Network was also created, constituted of civil society and media organizations. UNESCO is an official observer to the Coalition and administers its Global Media Defence Fund.

The Coalition is now more than 50 States strong. The High Level Panel has been publishing written advice to the Coalition, and the Coalition’s Member States have started to give effect to the High Level Panel’s recommendations by: (i) introducing and issuing emergency visas for journalists at risk; (ii) protecting their own journalists abroad through strengthening diplomatic support; (iii) working on a feasibility study for an international task force that can investigate violence and other abuses against journalists; and (iv) imposing targeted financial and travel sanctions against those who persecute the press.

The fact that some of the Coalition States are matching their words with action must be the cause for some cautious optimism. But much more needs to be done.

For the High Level Panel, that means continuing to provide legal advice to the Coalition States, reviewing draft legislation impacting on media freedom, accepting invitations by international courts to submit opinions, and making legal interventions in cases of wider public interest. It also means tackling the novel legal issues raised by the spread of disinformation, by the practice of arbitrary detention of journalists in state-to-state relations, and by the misuse of commercial spyware against journalists.

The Coalition offers an interesting model for international co-operation in a key area for democracies. Its tri-partite structure – the States, the independent lawyers and jurists, the civil society organizations – offers checks and balances and the prospect of accountability.

But as we celebrate the 30^th anniversary of World Press Freedom Day, we must reflect on this: if the media are silenced and journalists are muzzled, a key pillar of a functioning democracy is crushed. It means that an institution which is vital to a free society, which seeks to ensure accountability, to highlight injustices, to inform the public about matters in their interest, and to serve as a conduit between the people and their representatives, is neutralized. The loss of a free, independent media is essentially the loss of democracy.

IMAGE: Journalists and members of Guatemalan civil society carry a banner reading “Without Journalism There is No Democracy” during a demonstration against the threat to freedom of expression and the criminal prosecution of communicators, outside court in Guatemala City on March 4, 2023. The United States expressed concern on March 2 over Guatemala’s decision to bring legal action against nine journalists from an investigative newspaper, saying the move undermined free speech, and the Committee to Protect Journalists (CPJ) accused Guatemalan authorities of trying to “intimidate and harass” journalists at the publication who were investigating government corruption. The journalists from the newspaper El Periodico include its founder Jose Ruben Zamora, who had already spent eight months in pre-trial detention on accusations of money laundering and blackmail. (Photo by JOHAN ORDONEZ/AFP via Getty Images)

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1. Given Russia’s aggression against Ukraine is such a clear and egregious violation of Article 2(4) of the UN Charter, legal scholars have explained since the outset of the full-scale invasion in February 2022 that states who support Russia’s actions in Ukraine could themselves face legal consequences. Nevertheless, in the months since then, a number of states have provided assistance to Russia. As a general matter, when is it unlawful under international law to support a party to an armed conflict? 

As your question implies, the UN Charter is of paramount importance when evaluating the lawfulness of supporting a party to an armed conflict. Article 2(4) of the Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are very few exceptions to this rule: individual or collective self-defense under Article 51 of the Charter; authorization by the UN Security Council acting under Chapter VII; and potentially also state “consent” to the use of force on its territory.

Looking at Russia’s war in Ukraine, it is well-established that Ukraine may lawfully call on other states to aid in its collective self-defense against Russia under Article 51. Russia, on the other hand, is not entitled to invite other states to use force to assist it as it has no valid claim to self-defense against Ukraine. Accordingly, any state that uses force in support of Russia would violate Article 2(4) of the Charter, given that no other exception applies.

More debated is whether the supply of weapons to a party to an armed conflict itself amounts to a use of force under Article 2(4), where otherwise not justified under Article 51. While the International Court of Justice (“ICJ”) has so far held only that the provision of weapons amounts to a violation of the customary international law prohibition on the use of force in the context of non-international armed conflicts, commentators have suggested that the same rule may apply to the supply of weapons in international conflicts, such as Russia’s war in Ukraine.

Liability for supporting a party to an armed conflict may be incurred in three main circumstances.

First, under the law of state responsibility, States may be responsible where they “aid or assist” another state that commits violations of international law, including violations of Article 2(4), as well as breaches of international humanitarian law (“IHL”) and human rights law. Article 16 of the International Law Commission’s (“ILC”) Articles on State Responsibility, which the ICJ recognized as customary international law, sets out a standard for what is effectively state “complicity” in international law. Under this rule, states are responsible where they “aid or assist” another state with “knowledge of the circumstances of” the other state’s violation of international law. Article 41(2) of the Articles reinforces this provision in the context of violations of peremptory norms of international law by providing that States shall neither “recognize as lawful a situation created by [such] a serious breach” nor “render aid or assistance in maintaining that situation.” The ICJ has previously applied these duties of non-recognition and non-assistance in relation to illegal occupations in both the Consequences for States of the Continued Presence of South Africa in Namibia Advisory Opinion and in the Construction of a Wall Advisory Opinion. In the Namibia opinion, the ICJ held that states were under an obligation “to recognize the illegality and invalidity of South Africa’s continued presence in Namibia … [and] to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia,” and in the Wall opinion, the ICJ found that states were under an obligation not to render aid and assistance in maintaining the illegal situation resulting from Israel’s construction of a wall in the occupied Palestinian territory.

Second, under IHL, Common Article 1 to the 1949 Geneva Conventions provides that parties have a “duty to ensure respect” for the Conventions. According to the 2020 Commentary to Geneva Convention III, this includes both a “negative” obligation—i.e., an obligation not to “aid or assist in violations of the Conventions by Parties to a conflict”—as well as a “positive” obligation—i.e., an obligation to “do everything reasonabl[e] … to prevent and bring such violations to an end.” The ICJ recognized the “negative” limb of Common Article 1 in its Nicaragua judgment, where it held that states are under an obligation “not to encourage” violations of the Geneva Conventions. In the context of lending assistance, Common Article 1 therefore means that states may not provide support to parties to an armed conflict engaged in known or foreseeable IHL violations. The Arms Trade Treaty effectively mirrors this obligation by prohibiting states from supplying weapons to other parties knowing that they will be used in the commission of serious IHL violations and other offenses.

Finally, states (and any involved individuals) may also incur international criminal liability for supporting another party to an armed conflict where they “aid or abet” certain crimes, including war crimes and crimes against humanity, as detailed in the statutes of various international criminal tribunals.

2. Let’s take a closer look at the actions by a handful of states in Russia’s war in Ukraine. First, Belarus has reportedly provided support to Russia in the form of hosting Russian troops, weapons, and other equipment; providing tanks; mobilizing drivers and mechanics to repair Russian military equipment; permitting the use of its territory for Russian supply lines; providing medical care to Russian troops; and enabling Russia to use Belarusian territory as a launching ground for its missiles and armed forces. In January, the two countries engaged in joint military drills, although the Belarusian Defense Ministry claimed the “joint military grouping” and drills were “solely in the interests of strengthening the protection and defense” of Belarus. Does this support make Belarus a co-belligerent of Russia’s in the conflict and, in turn, an aggressor in the eyes of international law?

Before diving into this question, it is worth noting that Belarus may well be liable in relation to these actions under the various sources of international law I’ve just mentioned. “Co-belligerency,” by contrast, is a concept specific to IHL which is not directly connected to the issue of illegality, but which instead refers to joint participation in hostilities. Because co-belligerents are, factually speaking, “parties” to the conflict, IHL applies to them. This application of IHL in turn renders the co-belligerent’s military forces and objects susceptible to targeting.

The issue of when exactly a state providing support to a party to an armed conflict becomes a co-belligerent remains heavily contested. On the one hand, active participation in hostilities clearly amounts to co-belligerency, as might be involved in enforcing a no-fly zone. More complicated is determining whether less direct forms of support also result in co-belligerency. Reasoning from the “overall control” standard for determining when an indirect intervention results in an international armed conflict, as well as the IHL standard for direct participation in hostilities by civilians, commentators have attempted to draw some lines. While participating in decision-making about attacks, supplying information sufficient to enable attacks, and allowing the use of military or air bases to enable attacks may all potentially amount to co-belligerency, financing, equipping, or training parties to an armed conflict are alone generally considered insufficient.

To the extent that in addition to hosting thousands of Russian troops, Belarus takes steps to execute a joint attack across Ukraine’s northern border, as certain sources have warned, or to make good on its threat to send forces to fight alongside Russia, Belarus would be hard-pressed in those circumstances to argue that it was not a co-belligerent of Russia.

The question of aggression is considerably more straightforward. The Definition of Aggression, adopted by the UN General Assembly, includes “the action of a State in allowing its territory … to be used by … [an]other State for perpetrating an act of aggression against a third State.” Accordingly, if Belarus’s conduct can be characterized as enabling Russian attacks on Ukraine via its territory, such conduct likely would fall within the definition of aggression.

3. Next, let’s look at another example farther from Ukraine’s borders: Iran has had an increasing role in supplying Russia with drones and reportedly providing personnel to assist in their operation on the ground. Iran is also reported to be entering into a new agreement to manufacture additional drones in Russia. Does Iran’s assistance to Russia violate international law? What are the potential repercussions if so? We assume the answers to this question can also elucidate the general legal framework that would apply to other state’s conduct, including China’s.

First, as noted at the outset, Iran’s supply of weapons to Russia may constitute a violation of Article 2(4), given Russia’s lack of a justification for the use of force.

Second, Iran’s transfer of drones likely also runs afoul of Common Article 1, which prohibits states from transferring weapons with “recklessness” to parties likely to commit violations of IHL. That is so particularly given the well-documented and frequent pattern of Russia’s indiscriminate attacks on civilians and civilian infrastructure in Ukraine.

Third, Iran’s actions may also render it liable under Article 16 of the ILC’s Articles especially as they amount to a significant or material contribution to Russia in its commission of internationally wrongful acts. While commentators have debated whether the required mental element under Article 16 is “knowledge” or “intent,” in these circumstances, it would be difficult to  claim unawareness of Russia’s illegal war and related violations, meaning that Iran can be presumed to intend the foreseeable consequences of its assistance—namely, assisting Russia’s commission of these acts. The commentary to the ILC’s Article 41(2) further supports this view as it notes in the context of peremptory breaches of international law, it is “hardly conceivable” that a state lending support would not have notice of those breaches.

As for potential consequences, Iran and other states that have rendered illegal support to Russia may face countermeasures, which could be taken by Ukraine, the injured state, or potentially by third states. Such third-party countermeasures could be justified under a theory of enforcing erga omnes obligations, or the notion of collective self-defense of Ukraine. In addition, ILC Article 41(1) potentially imposes a positive duty on third states to “cooperate to bring an end to” serious breaches of international law, though the relevant Commentary recognizes that such a duty may still be developing under customary international law.

Individuals engaging in illegal assistance may also risk international criminal liability for “aiding and abetting” various crimes, as noted previously. Such individuals may also face sanctions, and in fact the United States has already applied sanctions to dozens of Belarussian individuals and entities believed to have facilitated Russia’s invasion, as well as several firms and individuals involved in the production and transfer of Iranian drones to Russia.

4. What does international law have to say about providing assistance to a victim of aggression? Is there any legal reason why assistance to Ukraine has been circumscribed? For example, there are reports that the United States has limited the range on Himars rocket launchers it has provided to Ukraine, presumably to ensure Ukraine can’t use U.S. weaponry to strike Russian territory. Do you think this move is primarily about policy concerns over escalation risks in the war? Or are there legal risks that need to be weighed as well? And is the distinction between “offensive” and “defensive” weapons meaningful as a legal matter when a country is engaging in military operations to regain its own occupied territory?

These decisions are likely informed by both policy and legal concerns, given Russia’s dangerous threats concerning nuclear weapons, as well as Russia’s rhetoric appealing to legal concepts, and the desire to give wide berth in the event of any disagreement.

In relation to the supply of weapons to Ukraine, one key legal issue which I haven’t yet mentioned is neutrality. In the wake of Russia’s invasion of Ukraine, commentators have disagreed about whether the law of neutrality is at all relevant to the provision of support to Ukraine. Briefly stated, while some have maintained that the law of neutrality does not apply following the outlawing of war and the adoption of the UN Charter, others have suggested that the provision of support to Ukraine does breach neutrality, but that Russia would at most only be permitted to take countermeasures in response, not resort to the use of force. For its part, the U.S. government has adhered to a “qualified neutrality” position, which allows for assistance to states that are victims of aggression.

As a practical matter, it is difficult to discern the difference in the context of active hostilities between “defensive” and “offensive” weapons.  Nevertheless, one potential reason for limiting the provision of weapons to those which might be considered “defensive” may be to make abundantly clear that U.S. provision of weapons to Ukraine is solely for purposes of defending Ukraine from Russia’s aggression, thus squarely falling within the confines of “qualified neutrality” and the previously mentioned justification of Ukraine’s right of collective self-defense under Article 51. As one commentary has pointed out, ILC Article 21 furthermore precludes certain acts from being considered violations of international law if performed in the exercise of self-defense under the UN Charter.  

The author wishes to thank Beatrice Walton for her assistance and comments on this article.

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