Ukraine, the UN and the ties that bind

Ukraine, the UN and the ties that bind

The United Nations (UN) represents the pinnacle of the post-Second World War system. But just how effective is it today in the face of the crisis facing Ukraine, triggered by its next door neighbour Russia?

The answer is steeped in ambivalence, and yet the global community still has to resort to the UN as the main artery of international relations to deal with that puzzle, as the UN embodies multilateralism which is preferable to unilateralism.

The answer also depends on whether the outlook is based on the (dys)function of the UN Security Council (SC), a 15-member organ vested with the power to "police" and "punish" through sanctions, or whether international society can access other checks and balances beyond the SC.

An inevitable challenge relates to the five permanent members of the SC, namely the United States, United Kingdom, France, China and Russia, as each of those five powers can veto and block substantive resolutions of a binding nature. What then is to be done if the breach of international peace is caused by a big power, all too willing to exercise the veto for its own self-interest?

The threat of dysfunctionality through the exercise of a veto in the case of Ukraine has loomed large since the very beginning of 2022 when Russia invaded its neighbour in the final week of February. To date, there has been only one resolution from the SC, passed that same month, and it was more of a procedural resolution to shift the Ukraine crisis to the UN General Assembly (GA) to deal with (the GA is the most representative organ of the UN with over 190 member countries).

However, the GA is hampered by the fact that generally speaking, it does not have the power to adopt binding, enforceable decisions on international peace and security. The most it can do is to pass persuasive resolutions indicating a preferred stance on an issue.

In March 2022, the GA adopted a resolution indicating Russian aggression against Ukraine, advocating respect for the sovereignty of the latter, cessation of use of force by the former, and withdrawal of Russian troops from Ukrainian territory. It then made use of a rare power of a binding nature entrusted to it by the UN reform process in 2005 in setting up the UN Human Rights Council (HRC) to suspend Russia's membership from the HRC on the basis of serious human rights violations.

Since then, the GA has adopted other resolutions to reject the Russian referendum over the annexation of Ukrainian territory and, most recently, last November, to call for reparations for Ukraine as a result of the invasion.

On another front, the HRC has taken a new initiative. It has set up a Commission of Inquiry consisting of international experts under the UN umbrella to investigate international crimes committed against the Ukrainian population on the basis of individual criminal responsibility, namely, accountability of specific individuals rather than accountability of a state.

Of particular interest is that this mechanism may be able to delve into the issue of four international crimes, namely, genocide, war crimes, crimes against humanity and crimes of aggression. While genocide pertains to egregious harm inflicted with specific intent against a particular group, a war crime is a violation in times of war, such as the wilful killing of civilians, and a crime against humanity is based on a widespread and systematic attack on the population, committed intentionally.

The situation now offers a novel opportunity to deal with the crime of aggression, which is a kind of successor to the international crime identified at the end of the Second World War under the heading of crime against peace. Basically, the crime of aggression is premised on an armed attack on the sovereignty of another state as a manifest violation of the UN Charter. The findings of the Commission of Inquiry based on the evidence gathered can then press for the accountability of individuals implicated concerning those international crimes.

From another dimension, that evidence might also be used to bolster the investigations carried out by the Prosecutor of the International Criminal Court (ICC). Even though neither Ukraine nor Russia is party to the Statute of the ICC, the former has already declared acceptance of the jurisdiction of the ICC. This implies that cases might be initiated against individuals accused of committing one or more of the four crimes noted above. Many states which are parties to the Statute of the ICC have called for referral of the situation to the ICC.

Side by side with the above, there is now a case between the two countries before the World Court (International Court of Justice), which has jurisdiction mainly between states in conflict with each other (rather than on the accountability of individuals).

Despite Russia's earlier allegation of genocide, Ukraine has now lodged a claim of genocide alleging Russian responsibility. The court is still deliberating the merits of the case, but significantly, as a temporary measure, in March 2022, it ordered Russia to suspend military operations in Ukraine, as well as to ensure that military and other armed units do not lead to the furtherance of military operations. There is then a directive to both sides not to aggravate the dispute.

In the meantime, beyond the political and juridical panorama above, there is the often invisible, practical side of UN work at the field level of helping victims that deserves more attention. Humanitarian programmes of the UN, such as the work of the UN High Commissioner for Refugees, are providing humanitarian assistance and opening doors to protect people on the move from Ukraine, with some five million refugees to date.

On balance, therefore, while parts of the UN may seem dysfunctional at times, other parts function under the most pressing circumstances. That duality also depends on the call for more voices of civil society and the rest of the global community to enhance a more people-centred multilateralism. And those who transgress in this context should be leveraged from all quarters to self-reflect -- to make peace, not war.

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University. He has helped the UN as UN Special Rapporteur, Independent Expert and member of UN Commissions of Inquiry on human rights.

Vitit Muntarbhorn

Chulalongkorn University Professor

Vitit Muntarbhorn is a Professor Emeritus at the Faculty of Law, Chulalongkorn University, Bangkok, Thailand. He has helped the UN in a number of pro bono positions, including as the first UN Special Rapporteur on the Sale of Children, Child Prostitution and Child Pornography; the first UN Special Rapporteur on the Situation of Human Rights in the Democratic People’s Republic of Korea; and the first UN Independent Expert on Protection against Violence and Discrimination based on Sexual Orientation and Gender Identity. He chaired the UN Commission of Inquiry (COI) on Cote d’Ivoire (Ivory Coast) and was a member of the UN COI on Syria. He is currently UN Special Rapporteur on the Situation of Human Rights in Cambodia, under the UN Human Rights Council in Geneva (2021- ). He is the recipient of the 2004 UNESCO Human Rights Education Prize and was bestowed a Knighthood (KBE) in 2018. His latest book is “Challenges of International Law in the Asian Region”

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