Two days after it was invaded, Ukraine sued Russia under the 1948 Genocide Convention. For starters, Kyiv has asked the International Court of Justice to declare that Russia had no lawful basis for invading – and certainly can’t rely on the pretext of addressing an imaginary genocide of ethnic Russians by Ukraine. Ukraine has another action pending against Russia for the persecution of non-Russians in Crimea under the Convention for the Elimination of All Forms of Racial Discrimination.
Though this sort of inter-state suit under public international law may be Ukraine’s most direct instrument of lawfare, it’s only one arrow in the quiver. Two days later, Ukraine filed an inter-state case in the regional human rights system. The European Court of Human Rights quickly ordered that Russia refrain from military attacks against civilian targets.
Russia might expect countless claims like those filed by bombing victims in Chechnya – except that Russia attempted to withdraw on 15 March, and the Council of Europe expelled Russia the next day, as chronicled by the human rights barrister Philip Leach. The Strasbourg judges may still adjudicate the inter-state case, and individual cases based on injuries sustained in the first three weeks of the war (as well as a smattering of applications from Crimea, and 7000 from the destruction of a Malaysian airliner by a missile over Donbas).
Russia has an execrable record of compliance, in a system otherwise distinguished by a remarkable enforcement record. This raises the intriguing question whether unpaid Strasbourg damages could be paid out of frozen Russian assets.
Seeking individual accountability, the International Criminal Court has launched a war crimes probe – but because Russia isn’t a member, the most apt crime is off the table: aggression. More than 140 nations have denounced Russia for violating the UN Charter’s ban on aggression. Surely if the term is to have any meaning, then it must be prosecuted here. An ad hoc group led by former UK prime minister Gordon Brown have called for the creation of a Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine. Barring that, Russian leaders implicated in aggression could be tried in a Ukrainian court (ideally with the Council of Europe, on the model of Chad’s brutal former dictator Hissène Habré). Or another nation’s courts – Poland and Lithuania are already investigating – could try them under a theory of universal or delegated jurisdiction.
Any which way, prosecutors will be hard pressed to get their hands on the suspects or evidence unless Putin is succeeded by a co-operative regime.
In the economic equivalent of warfare, 40 nations representing more than half the world economy have imposed export controls on strategic Russian sectors, selectively frozen the assets of leading Russian banks, and levied sanctions on the intertwined business-political elite. Even more unprecedented are the voluntary withdrawals. As of late March, Jeffrey Sonnenfeld of the Yale School of Management counted 450 multinationals that had pulled out of Russia to some degree, with fewer than 50 digging in.
Sanctions that forced Western companies to break their contracts are likely to ripple into a wave of international arbitration. But most legal systems allow force majeure or hardship as an excuse for non-performance; and when they don’t apply by default, they are usually written into the contract. Observing sanctions will rarely violate an investment treaty, because it fits snugly under the exception for national security. At the same time, payment of damages to a sanctioned firm may offend public policy, and enforcing courts might divert damages into an escrow account.
The more difficult Russian arbitrations to predict could be those that target Western companies that withdrew from the country voluntarily, rather than to comply with a sanctions regime. If Ukraine is dismembered at the end of this war, expect investors to file another wave of investment claims against Russia, taking their cue from the 11 groups who have sued over the seizure of Crimean business.
Meanwhile Moscow’s oldest legal adversaries – who have long dreamed of prising money from the bear – may suddenly find a wealth of frozen assets to latch onto. Yukos Oil’s fallen oligarchs are the most intriguing of this group. If only they can prevail in Dutch court on the final issue of fraud, the first and least needy victims in Putin’s consolidation of control over the carbon economy may face a suddenly-realistic path to collecting $50bn, plus interest.
This article first appeared in the April/May 2022 print edition of fDi Intelligence. View a digital edition of the magazine here.