End of the Road: Prosecuting Fulgence Kayishema for Genocide against the Tutsi in Rwanda

Posted on May 31, 2023 by Mark Kersten

The following is a guest-post by Owiso Owiso and Doris Uwicyeza Picard. Owiso is an international lawyer, scholar and researcher whose primary interests and areas of specialisation include general public international law, international criminal law/justice, international arbitration and dispute settlement, law of international organisations, human rights, and transitional justice. Uwicyeza Picard is an international law scholar and researcher whose areas of research include public international law, the law of international organizations, third-party remedies in international law, international humanitarian law, peacekeeping, human rights and international criminal law. She currently serves as Chief Technical Advisor in the Ministry of Justice of the Government of Rwanda. Her views are made in her personal capacity and do not represent the views of the Government of Rwanda. 

Fulgence Kayishema appears at a Cape Town court earlier this month (Photo: Yahoo)

After nearly three decades on the run, Fulgence Kayishema was arrested on 25 May 2023 in a grape farm in Paarl, South Africa where he had apparently been residing and working as a labourer. Kayishema, a former senior police officer, is suspected of playing a prominent role in the Genocide against the Tutsi in 1994, particularly in killings in Kivumu commune in Kibuye préfecture, including the particularly notorious massacre of approximately 2,000 Tutsi civilians in Nyange Catholic Church. Kayishema was indicted by the International Criminal Tribunal for Rwanda (ICTR) in 2001, charged with genocide; complicity in genocide; conspiracy to commit genocide; and crimes against humanity. In this post, we explore what his arrest tells us about South Africa’s role in harbouring genocidaires and where Kayishema should be transferred and prosecuted.

South Africa’s complicated ‘relationship’ with suspected Rwandan genocidaires 

Similar to questions that France faced in 2020 – but is yet to answer – when alleged genocide financier Félicien Kabuga was arrested in an affluent Paris suburb after nearly 26 years on the run, it is inevitable that many are wondering how Kayishema managed to live so long in South Africa unbothered by authorities. Indications are that South Africa knew of Kayishema’s presence long before his arrest on 25 May 2023. Addressing the UN Security Council in 2021, the Prosecutor of the IRMCT Serge Brammertz accused the South African government of stone-walling the search for Kayishema. The Prosecutor had earlier claimed that South Africa had initially acknowledged, as a reason for not arresting and extraditing Kayishema, that it had granted him refugee status, but later changed its position and pointed to legal difficulties in cooperating with the IRMCT. South Africa, however, changed its tune in 2022, ramping up cooperation with the IRMCT and establishing an operational task-team that eventually apprehended Kayishema. 

South Africa’s dalliance with suspected genocidaires is not new; it goes back to Apartheid South Africa, which, alongside France, is reported to have been one of the main arms suppliers to the genocidal Rwandan regime in the years leading up to the Genocide against the Tutsi. Elements of the Apartheid regime ensured that the arms flow to Rwanda continued even after the official collapse of the Apartheid in South Africa, without much interference by the newly elected democratic South African government. It is no surprise, therefore, that many Rwandans fleeing the collapse of the genocidal regime found their way to South Africa. While Kayishema’s case has been the most prominent due to his indictment by the ICTR, he is reportedly not the only fugitive known to be residing in South Africa. Kigali has claimed that at least four other persons suspected by Rwandan authorities of involvement in the genocide eventually made their way to South Africa, and reside and work there to this day. 

Where will/should Kayishema be prosecuted? 

Apart from the reputational embarrassment of having hosted a suspected genocidaire, Kayishema’s arrest now raises another uncomfortable dilemma for South Africa, that is, where Kayishema will be extradited to. While Kayishema was indicted by the ICTR in 2001, in 2012 the ICTR referred his case, among others, to Rwandan authorities. In May 2014, the ICTR issued an arrest warrant for Kayishema, requesting States to arrest and transfer him to Rwanda for trial. With this referral, it follows therefore that Kayishema ought to be transferred to Rwanda for trial. 

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Posted in International Criminal Tribunal for Rwanda (ICTR), Rwanda, Rwandan Genocide, South Africa | Tagged , , | Leave a comment

New Article Alert: ‘Global South’ Voices Are Muted in Debates over the Crime of Aggression: What Three Books on Illegal War Tell Us About Why

Posted on May 29, 2023 by Mark Kersten
(Photo: AP)

Dear readers,

I wanted to share with you a new article published at the International Journal of Transitional Justice earlier this year: “‘Global South’ Voices Are Muted in Debates over the Crime of Aggression: What Three Books on Illegal War Tell Us About Why”.

The article explores the sticky question of why it appears that so many states in the “Global South” (an utterly imperfect short-hand that I explore a bit in the article) remain ambivalent about prosecuting the crime of aggression in Ukraine. Rather than focus on more immediate debates on the subject and especially those that have taken place since Russia’s 2022 invasion of Ukraine, I reviewed books on the crime of aggression from three eminent experts – Carrie McDougall, Tom Dannenbaum, and Noah Weisbord – to try to understand where such ambivalence derived from. I therefore explore how previous debates and negotiations over the crime of aggression under the Rome Statute of the International Criminal Court as well as conversations about the purpose and goals of international criminal law more generally have contributed to a less-than-enthusiastic engagement among many States outside of Europe and North America in efforts to hold Russian authorities for the crime of aggression. A recent trip to Kenya to engage with international human rights and accountability advocates confirmed that this antipathy remains strong and is something that advocates must reckon with if we hope to convince a greater number of communities that Russian aggression must be prosecuted.

Here is an excerpt of the article:

Political and legal efforts to criminalize illegal warfare have received a tremendous amount of attention since the 2002 establishment of the International Criminal Court (ICC). At no point have discussions on the crime of aggression reached such feverish levels as they did following the 2022 invasion of Ukraine by Russian forces. Ongoing debate over how to investigate and prosecute the invasion, alongside the relatively muted response of the “Global South” to a proposed specialized tribunal to prosecute Russian leaders for the crime of aggression, is symptomatic of how diplomats have crafted the crime over the past two decades.

Those negotiations – their reasoning, political contours, historicity and consequences – have been studiously covered by Carrie McDougall, Tom Dannenbaum and Noah Weisbord in their respective books on the crime of aggression. Theirs are persuasive volumes written by thoughtful and diligent scholars of international criminal law (ICL). The books offer detailed assessments of what the crime is, its historical trajectory, its adoption and particular jurisdictional shape under the Rome Statute, as well as the role it might play in moderating international relations’ most devastating excess: war. Each author speaks to the politics of law and, to put it crudely, how the proverbial sausage – international law in this case – is made. The books articulate with laudable finesse how the crime of aggression came to be what it is today. This is, at times, a grim task, and the disappointment of the authors at the neutered version of the crime of aggression included under the Rome Statute is apparent. At the same time, these volumes, which also offer much hope, include lessons for the law student, diplomat and negotiator on how negotiations capture particular cross-sections in time and politics…

The diligent observer and academic would do well to consume all three books, even if they are left with the inevitable sense that the more they know about the crime of aggression, the more they know what they do not know. Rather than distil their findings any further, I thought it would be of greater interest to readers to use the balance of this review essay to enquire into what pertinent sections of these volumes tell us about Global South attitudes to the crime of aggression.

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Posted in African Union (AU), Crime of Aggression, International Criminal Court (ICC), Russia, Ukraine | Leave a comment

A view from Ukraine: Models for a Future International Tribunal for Russian AggressionA view from Ukraine:

Posted on April 17, 2023 by Mark Kersten

The following guest post was written by Volodymyr Pylypenko. Volodymyr holds a PhD in Law and is an Associate Professor in the International Relations Department of Lviv University of Business and Law, Ukraine. His previous post for JiC, ‘The View from Ukraine: Why a New International Criminal Tribunal to Prosecute Russian Aggression is Needed’ is available here.

A convoy of Russian armored vehicles moves along a highway in Crimea in January 2022. (Photo: AP)

Modern international law knows several relevant precedents. International tribunals became effective tools to punish persons guilty of the most serious international crimes of the 20th century, including the crime of aggression. The International Military Tribunals in Nuremberg and Tokyo, which were established after the Second World War recognized in their verdicts the planning, preparation, initiation and/or the waging of an aggressive war as an international crime. Accordingly, an ad hoc international criminal tribunal (ICT), with the power to prosecute senior Russian officials with the planning, preparing, and waging of aggressive war in Ukraine is plausible and legitimate. That is also the view of states, including The Netherlands, Estonia, Latvia, and Lithuania, as well as some international organizations such as the European Union (EU) and the Counsel of Europe, which have discussed the need to create such a tribunal to punish Russian officials for the crime of aggression and other international crimes.

A week ago, the ICC issued an arrest warrants against Putin and Russian Commissioner of Children’s Rights, charging them for serious war crimes such as unlawful deportation of Ukrainian children. Other charges for war crimes in Ukraine are like to still appear while the  ICC Prosecutor meticulously examines Russian atrocities in Ukraine. Meanwhile, the ICC does not have a jurisdiction to accuse Putin and hold him to account for the crime of aggression he committed against Ukraine. As I mentioned in my previous blog piece, I believe the establishment of a separate, international ad hoc tribunal is the best option to prosecute Russian aggression. In this blog I discuss possible options concerning the nature and the manner of establishing such a tribunal.  

 The sooner the main stakeholders agree on a unified strategy over the organization and functioning of this ICT and define a legal basis for its creation, the sooner accountability for aggression will follow. However, there are still some ‘pitfalls’ connected to the model of the future tribunal.  In what follows, I briefly assess three possible options.

Creating a tribunal through treaty between the states

An ICT can be created on the basis of an international treaty between states. Ukraine, as the state that has directly suffered the damage caused by Russian aggression, should be a mandatory participant in such a treaty. Under the same treaty, the parties should approve the ICT’s Statute, which will determine its procedural and substantive elements. The best precedent for this mechanism is, in my view, the well-known Nuremberg Tribunal, which was established on the basis of an agreement between the USSR, the United States, Great Britain and France with 19 other countries joining afterwards.

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Posted in Bilateral Immunity Agreements, Europe, Guest Posts, Hybrid Courts, Hybrid Tribunals, International Criminal Court (ICC), Russia, Ukraine | Tagged | 1 Comment

The National Hockey League and its Biggest Russian Star is Sports-Washing Putin’s War Crimes

Posted on April 1, 2023 by Mark Kersten
Washington Capitals star Alexander Ovechkin and Russian President Vladimir Putin (Photo: The Guardian)

The National Hockey League (NHL) has a war crimes problem.

The NHL’s official Instagram account regularly highlights Alexander Ovechkin, one of hockey’s premier stars. Click on the NHL’s stories and you can access Ovechkin’s own account, where he regularly shares posts with his 1.6 million followers. At the top, smiling creepily at viewers from Ovechkin’s profile photo is none other a wanted war criminal: Vladimir Putin.

By actively minimizing acts of genocide, war crimes, and crimes against humanity, the NHL is sport-washing mass atrocities. Instead of calling out Ovechkin’s long-standing support for Putin, it celebrates his every goal and step towards Wayne Gretzky’s all-time goal-scoring record. 

When will enough be enough? With Putin now facing war crimes charges at the International Criminal Court (ICC), will the NHL and Ovechkin finally change their tune?

Not unlike other sporting bodies such as FIFA, the NHL is a laggard when it comes to basic human rights standards. It was slow on denouncing anti-Black racism following the murder of George Floyd, and it has been slow in celebrating gender diversity. On the latter, some its hockey teams appear to be following the Kremlin’s instructions. 

In late 2022, Russia expanded its anti-gay propaganda laws. Now, numerous NHL hockey teams, most recently the Chicago Blackhawks, have decided not to wear Pride-themed jerseys because of fears that Russian-born players will face unspecified “security threats”. Instead of having everyone except the Russian players celebrate the LGBTQ community – and therefore making a point in support of sexual and gender minorities – numerous NHL teams decided that no one would wear the jerseys. Somewhere, Vladimir Putin is ecstatic about the reach of his homophobic policies. 

Back to Ovechkin. A recent in-depth CBC investigation outlined how Ovechkin developed a very close relationship with Putin since at least 2014. Ovechkin endorsed Putin’s first invasion of Ukraine that year, puppeting Kremlin claims that it was necessary to protect children from “fascism”. While Russian authorities crushed domestic dissent and jailed thousands of democratic opponents of Putin, Ovechkin worked tirelessly to ensure the Russian leader was repeatedly re-elected. 

Ask the NHL about it, though, and you get half-answers or silence. In November, NHL commissioner Gary Bettman claimed ignorance: “I don’t know what Ovechkin’s relationship is with Vladimir Putin.”When asked why Ovechkin had a picture of Putin up on his Instagram profile, Ovechkin’s coach on the Washington Capitals, Peter Laviolette, stated: “I’m going to talk about hockey tonight.” Hear that, victims of Putin’s war crimes? Hockey is more important than you.

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Posted in ICC Prosecutor, International Criminal Court (ICC), Russia, Ukraine, War crimes | Tagged , , , | 1 Comment

Why did the International Criminal Court focus on the transfer and deportation of children from Ukraine to Russia?

Posted on March 21, 2023 by Mark Kersten
(A destroyed vehicle near a playground in Kharkiv, Ukraine. Photo: Joel Gunter/BBC)

In the days since the International Criminal Court (ICC) announced it was charging Vladimir Putin and Maria Alekseyevna Lvova-Belova with the war crimes of unlawfully deporting children and transferring them from Ukraine to Russia, many have asked: why did the ICC start with children? Why not other crimes?

The first thing to note is that the arrest warrants issued against Putin and Lvova-Belova represent only the first strike by ICC chief Prosecutor Karim Khan. A few days before the warrants were announced, it was reported that the Prosecutor was preparing another warrant of arrest in relation to the deliberate targeting of civilian infrastructure in Ukraine by Russian forces. There is every reason to believe that a warrant regarding, for example, Russia’s shelling of apartment buildings, maternity wards, and power plants, is in the pipeline or has already been issued but remains under seal.

Still, why start with the abduction and illegal transfer of children?

First and foremost, the scale of efforts to abduct and transfer children from Ukraine to Russia is staggering. According to reports citing official Ukrainian statistics, 16,226 children have been deported from Ukraine to Russia. 10,513 have been located, and 308 have returned. Per a recent report from Yale University on the matter, this war crime no less a systemic and wholesale atrocity than any other, and it is being perpetrated against a particularly vulnerable group of civilians: children. Sufficient evidence was there for the Prosecutor and the ICC Judges and they went for it. Whether Khan’s team of investigators push to add a warrant for the forcible transfer of children as genocide remains to be seen.

The government of Ukraine has also very clearly communicated to the ICC Prosecutor that the abduction of children is its priority. In a widely televised meeting between Khan and Volodymyr Zelensky, the Ukrainian President informed the Prosecutor of this primary concern for Ukraine, stating:

I know there are a lot of different war crimes and of course we want justice and [to] bring all of these guilty people – all of them. But I think that the priority for our people, it’s about our future generation, it’s about our children. I think that this question is for me, number one, that you can focus on the case of deportation of our children and that it is very important to bring them back.

Focusing on the war crime of illegally transferring and deportating children from Ukraine to Russia indicates that Khan has accepted and is willing to act on the wishes of the Ukrainian state. But there is more to it too.

The focus on children could help delegitimize the very reasons for Putin’s war. In an op-ed that otherwise speculates rather wildly about the consequences of the ICC targeting the Russian President, Michael Byers makes the salient argument that the Court’s “arrest warrant discredits Mr. Putin’s claim that the invasion was an act of self-defence. Abducting children, after all, has nothing to do with protecting Russia against NATO.”

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Posted in Children, International Criminal Court (ICC), International Criminal Justice, Russia, Ukraine, Vladimir Putin | 6 Comments

Straight to the top: The International Criminal Court issues an arrest warrant for Russia’s Vladimir Putin

Posted on March 17, 2023 by Mark Kersten

It happened. It actually happened. After months of speculation, the International Criminal Court has issued arrest warrants in the Ukraine situation, including for President Vladimir Putin. Here’s the announcement from the Court:

Mr Vladimir Vladimirovich Putin, born on 7 October 1952, President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Mr Putin bears individual criminal responsibility for the aforementioned crimes, (i) for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute), and (ii) for his failure to exercise control properly over civilian and military subordinates who committed the acts, or allowed for their commission, and who were under his effective authority and control, pursuant to superior responsibility (article 28(b) of the Rome Statute).

Ms Maria Alekseyevna Lvova-Belova, born on 25 October 1984, Commissioner for Children’s Rights in the Office of the  President of the Russian Federation, is allegedly responsible for the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation (under articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute). The crimes were allegedly committed in Ukrainian occupied territory at least from 24 February 2022. There are reasonable grounds to believe that Ms Lvova-Belova bears individual criminal responsibility for the aforementioned crimes, for having committed the acts directly, jointly with others and/or through others (article 25(3)(a) of the Rome Statute).

Some quick reflections:

More than anything this is a significant moment for victims and survivors in Ukraine, especially the children and families of children who have been illegally transferred and deported to Russia. After years of largely being neglected and ignored, an international organization has stepped up to the plate and done what it could, for now, to stand in solitary with victims and survivors of war crimes in Ukraine. If the warrant against Putin is any kind of victory, it is first and foremost a victory of the Ukrainian people.

This is a historical moment for the ICC and for global politics, no doubt among the biggest developments in the Court’s history and indeed the history of international criminal law. This is the first time that the ICC has issued an arrest warrant for any citizens of the Permanent 5 at the United Nations Security Council (the United Kingdom, France, China, Russia and the U.S.). I think (and I hope) that this development will matter to those states – including those in the ‘Global South’ – who may have little interest in the ICC but have always, and rightly, been bothered by the impunity enjoyed by the world’s most powerful states and the P5 in particular. What this development undoubtedly also means it that for the foreseeable future, perhaps even decades, there will be no Security Council referrals of situations to the ICC.

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Posted in Uncategorized | 7 Comments

After One Year, We Can Fully See the Gendered Costs of the Ukraine War

Posted on March 7, 2023 by Mark Kersten

Gwen Battis joins JiC for this guest post on the gendered costs of Russia’s invasion and the war in Ukraine. Gwen is a graduate student at the University of Denver studying International and Intercultural Communication.

In Mariupol, a woman strolls past destroyed buildings (Photo: Getty Images / BBC)

It has been one year since Russia invaded Ukraine, inciting a future of violence, war, and displacement. With billions of dollars of Western spending and foreign assistance, Ukrainians are still suffering forced migration, torture and death. But what the common discourse around the conflict is missing is a focus on how this war, like all others, is inherently gendered and disproportionately affects women. 

The Russia-Ukraine war is rooted in economic and ethno-national power relations. Yet, if we analyze how economic and national systems are built, it becomes apparent that a modern-day neoliberal state cannot be built without gender, masculinity, and patriarchy. Gender relations are just as guilty in causing conflict and militarization.

Entertain this idea: Ukraine sits in the international arena as a state on its way towards progressivism, striving for equity, freedom, and liberation, thereby moving farther and farther away from its Soviet past. Russia, on the other hand, in many ways represents traditional values, patriarchy, conservatism, and dictatorship.

If we were to categorize each state based on traditional definitions of masculinity and femininity, we can more clearly see the gendered nature of this conflict: Russia’s invasion of Ukraine is symbolic of an exertion of hypermasculinity, a forcing of obedience, and a violent response to Ukraine’s feminine opposition. For Moscow, Ukraine was supposed to play the ‘woman’ in the relationship and therefore expected to submit. 

But what of Ukrainian women? If Ukraine as an entity is deemed worthy to be dominated, what of the most vulnerable population within Ukraine? 

Ukrainian women and other female-identifying folks are shouldering a disproportionate weight of this war. They are enduring a conflict that is both exacerbating existing gender inequalities and creating new areas of insecurity. After a year of armed conflict, I hope we can take time to investigate how the cost of a dictatorship and the subsequent fight for freedom is creating a climate that inordinately exposes women to suffering and violence.

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Posted in Crimes against humanity, Gender, Russia, Sexual and Gender Based Violence, Ukraine, War crimes | 1 Comment

Making the Invisible Visible: The Case for Truth Commission on Poverty in Canada

Posted on March 3, 2023 by Mark Kersten
(Photo: Peter Power)

Poverty remains as a human rights violation remains an under-explored subject, particularly in Western states like Canada. Within the field of transitional justice, the issue has likewise received less attention than violations of civil and political rights. In a new (draft) paper entitled “Making the Invisible Visible The Case for Truth Commission on Poverty in Canada“, I tackle this topic and ask what role transitional justice and, specifically, a truth commission, could play in helping to address the systemic and structural violence of poverty in Canada. For those interested, here is the abstract:

Socio-economic conditions have received greater attention in recent years but remain a blindspot in transitional justice. So too do settler colonial contexts. A case in point is Canada. To wed the law and politics of poverty eradication and place victims of poverty at the center of this effort, this paper proposes the creation of a Truth Commission on Poverty (TCP). It proposes the creation of a truth commission to examine to the root causes of poverty, take stock of the current climate for poverty reduction, and lay the groundwork for a coherent approach to poverty eradication in Canada. Not seeking to romanticize truth commissions, the paper assesses their strengths and weaknesses in addressing human rights violations before turning to what a TCP in Canada might offer. It offers six reasons to support such an initiative: (i) to address poverty as an ongoing human rights violation; (ii) to render visible the victims and survivors of poverty’s violence; (iii) to interrogate and address the root causes of poverty in Canada; (iv) to assess the consequences of poverty in Canada; (v) to inform the language of social and economic inequalities; and (vi) to alter the political costs of addressing poverty in Canada by accepting social and economic rights as justiciable.

The full-text of the paper can be found here. I am also happy to share copies of the article with those who do not have access to Academia.edu. If you have feedback or comments, they are more than welcome.

poverty-truth-commission-kersten-2023Download

Thank you, as always, for reading!

Posted in Canada, Social and Economic Rights, Transitional Justice, Truth and Reconciliation Commissions, Truth Commission | Leave a comment

A War Crime Coalition: Russia’s Iranian and Chinese Drones Target Ukrainian Civilians 

Posted on February 22, 2023 by Mark Kersten

Paula Knack joins JiC for this guest post on Russia’s drone warfare in Ukraine. Paula was a former Legal Advisor of the Philippine Embassy and former Assistant Secretary of the Philippine Department of Environment and Natural Resources. She holds masters degrees in Advanced Studies in Public International Law (Leiden) and Science (Munich). The opinions below are her own.

A man walks near a factory bombed by Russian forces in Kyiv, Ukraine (Photo: AFP)

In the wars in Iraq, Libya, Yemen, Azerbaijan, and Syria, huge artillery platforms with varying capabilities were connected to artillery systems and air defense sub-systems to accomplish combat operations. A major concern in such contexts is the accuracy of direct fire weaponry of various ranges to execute the mission and minimize unintended casualties, such as civilians.  Russia’s aggression in Ukraine illustrates this issue. Russia’s feuding mercenaries and ill-trained army, grappling with lack of training and low morale, appear incompetent when it comes to operating weapon systems with precision. Its troops have resorted to relentless, indiscriminate, and disproportionate attacks against civilian infrastructure, often resulting in mass atrocities. 

The war in Ukraine rapidly developed into a so-called “drone war” in its first year. On the Russian side, drones compensate for a lack of competence in targeting and interoperability requirements for firing and defense. On the Ukrainian side, as weapons and ammunition supplies from the West diminished, the lack of a huge military arsenal has led to innovative approaches to prevent the onslaught and occupation of key cities by Russian tanks, including using drones as anti-tank weapons. 

Prior to the depletion of much of its vast war arsenal last year, Russia employed various weapons to attack Ukrainian territory. War monitors from the Organization for Security and Co-operation in Europe (OSCE) reported the use of unguided bombs – heavy artillery, grad multiple rockets, air dropped bombs – on urban areas. Open-source intelligence has also revealed the use of vacuum bombs, cluster munitions, as well as ballistic and cruise missiles. In Mariupol alone,87,000 civilians died after hospitals and residential buildings were targeted. After heavy artillery fire, Mariupol was reduced to ruins. 

In its attacks, Russia has repeatedly violated international humanitarian law (IHL). In Mariupol, prohibited cluster bombs and ballistic missiles were used, and mainly civilian infrastructure was targeted. Russia also used thermobaric bombs in residential buildings, violating the Convention on Certain Conventional Weapons and causing unnecessary suffering on the civilian population in violation of the principle of distinction under Additional Protocol 1 (AP1), ratified by both Russia and Ukraine. Despite the protected status of civilians and civilian infrastructure under IHL, due to poorly trained and/or inexperienced armed forces and mercenaries sent to the war, Russia’s troops are increasingly relying on drone intelligence for targeting. This must not go unnoticed by those engaged in accountability efforts.

Drones are Key to Russian Offensive

Originally meant for intelligence, surveillance, and reconnaissance purposes, drones come in various types and sizes, and can be equipped with explosives. A quadcopter with RPG-7 is typically used to block the entry of tanks in residential areas and supply routes. It is cheaper and easily transportable. It has a sustainer motor of only about 4.5 lbs. and an explosive-equipped warhead of only 1.5 lbs. Some small drones easily fit in backpacks and cost a fraction of anti-tank systems. 

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Posted in China, Drones, International Humanitarian Law, Iran, Russia, Terrorism, Ukraine, War crimes | Tagged | 7 Comments

Preventing Patterns of Impunity: Recognition of the Holodomor in Ukraine as a Genocide

Posted on January 23, 2023 by Mark Kersten

Max Dowbenko joins JiC for this blog post on recognizing the Holodomor as a genocide and the link between doing so and addressing more recent atrocities in Ukraine. Max is a Trainee Solicitor with the UK Government Legal Department. He holds an MA in law from the University of Cambridge and an LLM in Public International Law from the University of Amsterdam

A statue in Kiev memoralizes the victims of the Holodomor (Photo: DW)

February 24, 2022, saw the full-scale invasion by Russia of Ukraine, and, with it, a new and far more uncertain era in global security and international law. This is not to say that the war in Ukraine is the only threat to territorial integrity and the use of force in this century – far from it.  Other states, including those in the UN Security Council, have used force almost certainly illegally in recent times. However, this invasion marks the most significant threat to the international rules-based order since the end of the Cold War, not least because it involves an attempt by a major world power to annex territory from another state. Russia’s legal justification for invading Ukraine is extremely weak, and the genocidal rhetoric it has deployed extremely concerning. And this is not the first genocide committed by Moscow in Ukraine.

The invasion of Ukraine has been condemned by members of the international community as a crime of aggression, one of the four core crimes under International Criminal Law. A United Nations General Assembly Resolution demanded a full withdrawal of Russian forces, and the International Court of Justice ordered Russia to suspend military operations. A May 2022 report commissioned by the New Lines Institute in Washington and the Raoul Wallenberg Centre for Human Rights in Montreal found that there were “reasonable grounds to conclude” that Russia is already in breach of two articles under the 1948 Genocide Convention: (1) the public incitement of genocide (Article III(c)), and (2) the forcible transfer of Ukrainian children to Russia (Article II(e)).

Russia’s war with Ukraine did not start in February: Ukraine has been at war with Russia for eight years, since the annexation of Crimea and initiation of hostilities in the Donbas in 2014. February marked a significant escalation in activities, however, with Russian armed forces invading openly on several fronts, rather than through the use of proxies. The aims of the Russian state have been unclear and subject to much scrutiny and hypothesizing. One of the key enabling factors of the invasion itself is a history of Russian impunity for breaches of international law. Russia’s permanent place on the UN Security Council means that Russia is largely sheltered from the effects of the international legal order. Even preceding its annexation of Crimea and the conflict in the Donbas in 2014, Russia’s actions in Georgia in 2008 and in Transnistria in the early 1990s were both illegal uses of force under international law with the pretense of protecting the Russian speaking or pro-Russian local population. Russia suffered no significant international consequences for these uses of force. This has had a two-fold effect: (i) facilitateing Russia’s ability and will to use violence to assert its influence in the former Soviet Union; and (ii)  facilitateing the spread of Russian nationalism within Russian society, particularly through imperialism aimed at carving out a ‘greater Russia’ by force.

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Posted in Genocide, Holodomor, International Criminal Justice, International Law, Russia, Soviet Union, Ukraine | 2 Comments