International Law and the War in Ukraine: Interview with Professor Marko Milanovic

International Law and the War in Ukraine: Interview with Professor Marko Milanovic

. 9 min read

Marko Milanovic is Professor of Public International Law at the University of Reading School of Law. He is co-general editor of the ongoing Tallinn Manual 3.0 project on the application of international law in cyberspace and Senior Fellow, NATO Cooperative Cyber Defence Centre of Excellence. Milanovic is currently advising a task force supporting the Prosecutor General of Ukraine regarding accountability for crimes committed during the Ukrainian conflict.

To begin, how have you seen the role of supranational justice structures, such as the European Court of Human Rights (ECHR) or the International Court of Justice (ICJ), change over the past few years? Has there been a shift following Russia’s invasion of Ukraine?

It is too early to say whether there's been a shift in the use of international justice structures in the past year. As it has been said of the French Revolution, you need to wait for a while to see whether events such as this one [have] an effect on such deeply embedded parts of the international legal system.

So we need to take a more extended look at these various international courts. And what we can definitely say is that in the long arc of time, the number of international judicial institutions in particular has increased. So has their variety; there's multiple different kinds of international courts. The International Court of Justice is the principal judicial organ of the United Nations. It can resolve interstate disputes of all kinds. But we have many, many other specialized courts and tribunals. Some parts of the system have been in crisis over the past few years for various different reasons. For example, the World Trade Organization (WTO) Appellate Body has been killed, basically, by the Trump administration. And this has continued under the Biden administration. Some parts of the system, like international investment tribunals, have been [highly] criticized because [of] their perceived biases. Other parts of [the international legal] system, like the ICJ, tend to work reasonably well. The ICJ has never had as many cases, and as varied a caseload, as it has today. So in that measure, that system works basically as designed.

As for the European Court of Human Rights, it's a very complicated institution that can hear different types of cases. It receives, I don't know, maybe 60,000, even more new cases each year. All of these tend to be individual applications, so cases filed by one individual against the state. However, the court also has jurisdiction to hear interstate disputes. These have increased in frequency over the past few years, and the Ukrainian conflict has brought about quite a few of these.

Now, the interesting situation here is that the ECHR is essentially tasked with adjudicating the entirety of the war in Ukraine. [The ECHR must determine] whether [Russian] forces and the forces of [their] proxies in Ukraine respected human rights in conducting hostilities, detaining prisoners, etc., from 2014 up to last September, when Russia left the European Convention on Human Rights. And that is an enormous task for any court.

So that court is trying to do this and has handled itself, more or less, reasonably well. It has decided several cases with regard to the conflict in Ukraine, most recently the admissibility stage of a case brought by the Netherlands and Ukraine against Russia, that also dealt with the situation in eastern Ukraine and the downing of Malaysia Airlines Flight 17 (MH17) in 2014. But to do that work well, the court needs an enormous amount of resources, and it is up to the member states of the Council of Europe to actually give it money so that the court can hire enough staff and do everything it needs to do. The heads of state of the government of the Council of Europe just finished [a] meeting in Reykjavík where they devoted themselves again and recommitted themselves to the ECHR and the convention system. But the issue is, will they actually put their money where their mouths are? And will they give this court the resources it needs to do its work? So that's a very long answer to what is actually a very long question.

You co-authored an amicus curiae brief in May regarding the ECHR case brought by Ukraine and the Netherlands against Russia. Why did you see this brief as necessary, and what issues did you hope to address?

This is a brief that my colleague Sangeeta Shah, who is the co-director of the Human Rights Law Center at University of Nottingham, and I have submitted. The reason why we submitted the brief is because the case deals with many, many, many very complex questions. One issue that has provoked an enormous amount of case law and very conflicting decisions in the past couple of decades is this question of to what extent human rights law applies outside a state's borders – so when Russia acts in Ukraine, for example. And the other big question is how human rights law is to be interpreted and applied alongside the law of armed conflict – international humanitarian law, that part of international law that is specifically designed to regulate the conduct of hostilities. And so what we try to do in our brief is really lay down a path that we think the [ECHR] should follow on these two essential issues.

And our basic message to the court, the message that we think it should heed, is that it needs to confront these issues head-on, that they're not something that can be avoided; that even though it's a human rights body, of necessity, it will have to adjudicate a whole host of claims that deal with the conduct of hostilities in Ukraine, and the treatment of people [by] the power of the enemy in Ukraine. That's their job and they should not shirk away from their job. And there is a way to do it properly and rigorously, both as a matter of law and as a matter of fact. But we admit that it is no easy task, for example, to determine whether it was or was not Russia who shot down MH17; or whether, in any particular town that was subjected to artillery shelling, Russia used those weapons lawfully or unlawfully; or whether the people who were killed as a result of that particular shelling were therefore deprived of their right to life unlawfully. So that is the basic message that we tried to send. Of course, the court’s job in that case is made much more difficult by the fact that the Russian Federation has now decided not to participate in any proceedings before the court, even though the court undoubtedly has jurisdiction over events taking place up to September 2022.

As you mentioned, Russia left the Council of Europe last year and is no longer subject to the ECHR’s jurisdiction. Why, then, do you believe Ukraine and the Netherlands v. Russia is still important, and can it affect the international narrative on the war in Ukraine?

It is still important, [and] I think it can have many different effects. It is true that Russia, at least under the current government, will not participate in proceedings before the court. And when there's eventually a judgment, Russia will simply not comply with the judgment. So from a short-term perspective, you can say, well, all this stuff is irrelevant.

But that is not the only perspective to be had on a case such as this one. First of all, even in the purely narrow Russia-Ukraine context, the proceedings matter quite a lot. Russia is not a rogue state. Russia is still a major player in the international system; it very much cares about its reputation. And Ukraine, of course, very much cares about its own reputation. And if you're Ukraine, and you have many, many judgments of international courts, including the ECHR, on your side, that counts for something in the international system. It counts less than aircraft carriers and nuclear weapons, but it counts for something. So in that sense, from Ukraine's perspective, having on its side the arguments of international law matters. It [also] of course matters very much so for the victims of any particular human rights violation, who will have what happened to them recognized by an international court.

So that's one dimension of the whole issue of why this systemically matters. The other is that this is the first time, basically, that any international court that decides interstate cases will be adjudicating on the application of human rights in an armed conflict on [such a] vast scale. And this will have repercussions for other states and other such situations that have happened or will happen in the future.

So what the ECHR does, for example, with regard to Russia, is very important for countries like the United Kingdom, or France, or even the United States, when they go on some kind of overseas military adventure. What the court does [and] how it approaches these questions has bearing on what other states have to do in their compliance with international law. And, you know, they always operate sort of in the shadow of the law. So that's why this kind of case is very important.

Going forward, what more can the ECHR and other supranational justice structures do to hold bad actors accountable, even when they do not fall under the courts’ jurisdiction?

Well, they cannot do much. International courts are properly limited by their jurisdiction. The jurisdiction of international courts generally rests on consent. In the absence of consent, it is not [bad actors] who have to do anything. And [the courts] are less active protagonists in this kind of accountability endeavor and more of a stage on which these kinds of accountability efforts play out. So it is not the ECHR that has agency on this, it is Ukraine that had agency, that brought this case before the court. It is the fact that 26 other member states of the Council of Europe have decided to intervene in support of Ukraine that tells you, basically, the states want the court to play this kind of role.

The one court that has a bit more agency is the International Criminal Court (ICC), which is a very different type of creature. And it is really the prosecutor of that court which decides how to investigate particular types of cases, which to prioritize, [and] how many resources to invest in any particular investigation. The current prosecutor has done that with regard to Ukraine at a very large scale. As you know, the ICC prosecutor has applied to the court and the court has issued two arrest warrants, one for Vladimir Putin and the other for Maria Lvova-Belova, the [Russian] Children's Rights Commissioner. So that, of course, as you can imagine, is a very big deal. Again, Russia, because it is not a party to the statute of that court, has no obligation to cooperate with that court whatsoever. It is highly unlikely that Mr. Putin will end up in that courtroom of that court unless his regime falls, which also, to me at least, seems unlikely.

But it does matter. The fact that these proceedings unfold does matter. And there is currently a debate as to whether to create a special tribunal of some kind that will focus on the crime of aggression, rather than the atrocity-type crimes over which the ICC has jurisdiction. So essentially, to give you a short answer, international courts are doing what their job is in a situation like this one. But the war in Ukraine is by no means the only such situation international law and international courts have faced in the past, and we, [as] international lawyers, are both aware of the advantages and the limitations of such mechanisms; it is not something terribly unusual.

What are the most important factors in holding states as opposed to individuals accountable?

As far as international law is concerned, holding states responsible is the normal course of action. States hold each other accountable all the time. The international legal system is really about this kind of daily interaction between states on various levels for multiple reasons. And normally, it is states who are responsible for violating international law, not individuals. Individuals are responsible only in a very narrow set of circumstances, when they commit international crimes. So in that sense, international law is already helping, for example, hold Russia accountable with regard to its invasion of Ukraine, and Russia has suffered many, many consequences for what it has done. It's not like it has walked away unpunished. It's just that there is no system of international law that can send some kind of fantastic international police to stop the invasion and arrest Putin. I mean, that thing just does not exist, and will probably never exist. But there are many, many, many ways in which Russia has been held accountable. That includes the various unilateral measures that many states have taken against Russia, which have taken their toll on Russia.

My one hope, however, is that states understand that this law should apply equally to everyone. The reason why some of the accountability efforts in support of Ukraine have not found purchase in large parts of the world, and of the developing world in particular, is precisely because many of these countries have seen Western states violate international law in fairly similar situations and walk away relatively unpunished. So, you know, when we think about accountability for Vladimir Putin, we should not neglect the fact that George W. Bush is regarded as a completely respectable member of the community in the United States: he's invited to various receptions [and] is a mainstream sort of persona, even though the invasion of Iraq was equally unlawful, and even though it took many more lives, as things stand, than the war in Ukraine. So there's a huge problem with double standards, and that is something that Western states need to acknowledge.

Varada spoke with Milanovic on May 24, 2023. This interview has been lightly edited for length and clarity.