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Unequal Justice: Can Russia Get Away with its War Crimes?

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The war in Ukraine exposes the uncertain reach of international law.

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On March 16, the International Court of Justice (ICJ) ordered Russia to "immediately suspend" its invasion of Ukraine. The ruling came on a resounding 13-2 vote, with only the court's Russian and Chinese judges dissenting.

And yet the death and destruction continue. Russia has openly defied the ICJ, and the court has no means to enforce its order. Even if a negotiated settlement is reached in the coming days or weeks, the weaknesses of international humanitarian law have once again been tragically exposed.

Some 123 countries have signed the Rome Statute, but both the United States and Russia are scofflaws.

Still, this is no time to give up on the rule of law as an alternative to war, whether waged by Russia, the United States, or any other global power. The ICJ should be applauded as a voice of reason and peace on Ukraine; its ceasefire order expresses the conscience of the world.

The International Criminal Court (ICC) has also opened an investigation into the war in Ukraine. Like the ICJ, the ICC is based in The Hague, Netherlands. The two tribunals are separate and independent institutions that serve complementary purposes.

Also known as the "World Court," the ICJ sits in the Peace Palace, a turreted red-brick edifice constructed in the Neo-Renaissance style in 1913. The court is the principal judicial organ of the United Nations, and is designed to adjudicate disputes between nations. It does not prosecute individuals; that's the job of the ICC.

Since convening its first trial in 1947, the ICJ has heard some 182 cases. Many involve boundary, aviation, and fisheries disputes, but a few have addressed weighty charges of genocide and human-rights abuses in the former Yugoslavia, Iran, and now Ukraine.

Although it usually takes the ICJ about two years to resolve a case, the court has put its response to the invasion of Ukraine on a fast track. The court held a public hearing on March 7 to review Ukraine's emergency application for a ceasefire and scheduled March 8 to consider Russia's side of the controversy. Russia submitted written objections to the court's jurisdiction, but otherwise declined to appear. Undaunted, the court forged ahead, live-streaming the March 7 session on the Internet. The March 8 hearing was canceled.

That the court would rule in Ukraine's favor was not a foregone conclusion. The court's jurisdiction is limited by the provisions of the U.N. Charter, and its own governing statute. It can hear contested matters involving countries that have assented to its "compulsory jurisdiction" for all purposes or that have agreed to submit specific disputes to it under the terms of international treaties they have signed.

Currently, only seventy-three countries have accepted the ICJ's compulsory jurisdiction. They include most of the nations of western and northern Europe, but neither the Russian Federation nor Ukraine is among them. Neither is the United States, which hypocritically withdrew from compulsory jurisdiction in 1985 after it was sued in the ICJ by Nicaragua for fomenting civil war and mining Nicaragua's harbors.

In its emergency application, Ukraine invoked the ICJ's jurisdiction under the provisions of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which both it and Russia have signed. The court's subsequent ceasefire order stressed the risk of irreparable harm to Ukraine and the urgent need to stop the bloodshed. The decision, however, is only provisional; a formal trial on the merits will be set for a later date.

The International Criminal Court, by contrast, has the potential to deliver more immediate real-world consequences for Russian military personnel and possibly for Vladimir Putin himself.

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Bill Blum is a retired judge and a lawyer in Los Angeles. He is a lecturer at the University of Southern California Annenberg School for Communication. He writes regularly on law and politics and is the author of three widely acclaimed legal (more...)

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