A country that serves as a permanent member of the UN Security
Council, that guaranteed security and territorial integrity of
Ukraine in exchange for nuclear weapons, that signed a bilateral
Treaty of Friendship, Cooperation, and Partnership has reneged on all
its promises. The UN Charter has been violated, treaties broken,
guarantees forgotten, mechanisms for nuclear non-proliferation
undermined.
Every war ends in peace. This war will be no exception.
Ukraine will defend its independence, reintegrate
Crimea and Donbas, and will never re-enter Kremlin’s orbit again.
That is the only formula Ukrainian people will ever accept.
But what then? A new treaty of “Friendship, Cooperation, and
Partnership”, backed by new empty guarantees?
Or, should we rely on the idea of a stronger Ukrainian army and
becoming a member of NATO, whose increasing reliance on diplomacy is
proving increasingly ineffective in the face of naked aggression?
How do we co-exist with a neighboring nuclear state that ignores the
established international order?
The civilized world has developed a number of tools to influence
rogue regimes, but their effectiveness is limited. Sanctions are the
“go to” peace enforcement mechanism, but they are only introduced
after the fact and at a great expense to the rest of the world.
Since World War II, the global community has made a number of
attempts to develop effective mechanisms for upholding peace and
international law. 1945 saw the founding of the International Court
of Justice, meant to provide arbitration between states based on
international law, customs and principles accepted by the civilized
world.
Unfortunately, the International Court of Justice is only able to
hear cases provided that the states involved consent to be subjected
to its rulings. The position of the Russian Federation, one of the
founders of the UN and a permanent member of the Security Council,
with regards to its aggression against Ukraine and illegal annexation
of Crimea does not allow for the possibility of such consent.
The European Convention on State Immunity signed
on May 16, 1972, and United Nations
Convention on Jurisdictional Immunities of States and Their Property,
signed on December 2, 2004,
were sound in principle, but remain
ineffective in practice.
Given the circumstances, a new global mechanism
for containment of rogue regimes is required. One
such mechanism could be the prospect of inevitable financial redress
for damages caused by unlawful aggression, based on rulings of
national courts in cases against aggressor states brought by
individuals who suffered as a result of the aggression.
Such system cannot rely on international courts, due to the likely
capability of the aggressor state to impede their creation and
effective operation, as well as the practical considerations of
dealing with millions of people affected by a single conflict. Only a
national court system has the capacity required for such a task.
Since World War II, a tendency has emerged in judicial practice, and
in certain cases it was reflected directly in legislation, of moving
away from the doctrine of absolute immunity in favour of functional
immunity. The latter provides that a state may not invoke immunity in
courts of another state in cases where its actions were found to
exceed its sovereign authority, and also in cases that involve
monetary compensation for death, injury, damage and loss of property
caused by actions of one state on the territory of another.
Today, Ukrainian civic movement Sila Prava has begun to create a
legal support system for victims of the Russian military aggression.
Courts in Kherson and Lugansk oblasts, and in Kyiv, have already established legal
facts of damages caused to citizens of Ukraine as a result of the
military aggression by the Russian Federation and its occupation of
parts of Ukrainian territory.
A court in Khmelnitsky Oblast, in a case brought
by the family of the deceased Major Yaroslav Kostishin, has
determined that his death occurred in the line of duty as a result of
the Russian military aggression.
Goloseev Court Kyiv on May 30, the case of Irina Verigina, an internally displaced person
as a result of the Russian aggression, has decreed to arrest the
claim on repayment of the $3 billion loan extended by the Russian
Federation to ex-President Viktor Yanukovych’s regime.
Thus, Ukraine is witnessing an emergence of judicial practice based
on the concept of function immunity of states.
Given the fact that we are unlikely to see
voluntary compliance with court decisions concerning damages caused
by the Russian aggression, arresting Russian state property on
Ukrainian territory, with the exception of the diplomatic and
consular, may become a viable mechanism for enforcement of such
decisions.
However, the value of Russian state assets on
Ukrainian territory is significantly lower than the value of damages
caused by the aggression against our citizens, calculated in
accordance with the methodology of the European Court of Human
Rights. As a result, it is critical for Ukrainian citizens to be able
to have their cases heard in foreign courts, all the way through to
enforceable verdicts.
The inevitability of payback for military
aggression, of the financial burden that would weigh on citizens of
aggressor states for generations and even after regime change, may
become an effective global mechanism for prevention of military
aggression.
Andrei Senchenko, head of Sila Prava Legal Advocacy Organization, member of the “Batkivshchyna” Party Political Council.
