International Criminal Court building (2016) in The Hague. (OSeveno, https://tinyurl.com/mphjvm88; CC BY-SA 4.0, https://creativecommons.org/licenses/by-sa/4.0/deed.en) The ICC Investigates the Situation in Ukraine: Jurisdiction and Potential Implications Lawfare March 10, 2022 By Jaime Lopez, Brady Worthington Against the backdrop of Russia’s invasion of Ukraine, the prosecutor for the International Criminal Court (ICC), Karim Khan, announced on Feb. 28 that his office would open an investigation into potential war crimes stemming from the conflict. In a press release, the prosecutor stated that the investigation would examine events dating back to 2014 and, “[g]iven the expansion of the conflict in recent days,” would include “any new alleged crimes” committed within the territory of Ukraine that may fall under the ICC’s jurisdiction. Since Russia launched a full-scale invasion of Ukraine on Feb. 24, the Ukrainian government and numerous international human rights groups have expressed outrage over Russian shelling and missile strikes in densely populated areas, leading to several instances of civilian casualties. In recent days, reports have emerged that Russia is deploying area-fire munitions, such as cluster bombs—which open in the air and release submunitions over broad areas—in densely populated cities, without regard for the risks to the civilian populace. Kharkiv, Ukraine’s second most populated city, has been one target of intense Russian shelling. Ukraine’s president Volodymyr Zelensky commented in a speech to the European Parliament, “This is not a random mistaken salvo, but a conscious extermination of people. The Russians knew what they were firing at.” In order to understand the potential scope and implications of the ICC’s forthcoming investigation, this post reviews the extent—and limits—of the court’s jurisdiction over the conflict, as well as the concerns raised by the Ukrainian government and international organizations, and which areas of international law may apply. The Court’s Jurisdiction in Ukraine Neither Ukraine nor Russia is a state party to the Rome Statute—the 2002 treaty that establishes and governs the authority of the ICC. As such, neither state has the ability to refer possible crimes to the court. However, Ukraine has twice declared that it accepts the jurisdiction of the court for crimes committed within its territory. In announcing the investigation into the situation in Ukraine, the ICC prosecutor explicitly references both declarations to lend authority to the court’s jurisdiction in this case. The latest of Ukraine’s two declarations was registered with the court in 2015 after Ukraine’s Parliament adopted a resolution distinctly accepting the ICC’s jurisdiction indefinitely from Feb. 20, 2014, onward. Simultaneously, Ukraine accused “senior officials of the Russian Federation” and associated terrorist groups of crimes against humanity and war crimes in Crimea and the eastern regions of Donetsk and Luhansk, “which led to extremely grave consequences and mass murder of Ukrainian nationals.” Since 2014, the ICC has been conducting a preliminary examination—a common pretext to a full, official investigation—into the situation in Ukraine. In Khan’s announcement of the forthcoming investigation, he stated: I have reviewed the Office’s conclusions arising from the preliminary examination of the Situation in Ukraine, and have confirmed that there is a reasonable basis to proceed with opening an investigation. In particular, I am satisfied that there is a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine in relation to the events already assessed during the preliminary examination by the Office. The prosecutor’s ability to exercise jurisdiction over Article 5 offenses—like war crimes and crimes against humanity—stems from Articles 12 and 13 of the Rome Statute. Under Article 13, there are three situations under which the ICC can exercise its jurisdiction. The first is in situations where the alleged crimes are referred by state parties. As noted, although Ukraine is a signatory to the Rome Statute, neither Ukraine nor Russia is a party; this means that the statute is not legally binding on them, although under customary international law, Ukraine has certain limited obligations not to violate the object and purpose of the treaty. Russia withdrew its signature in 2016, essentially severing its ties to the statute. Since the prosecutor’s announcement of a preliminary investigation, as of March 2, however, 39 state parties have referred matters to the court, which would seem sufficient on its face to grant jurisdiction. The second manner of exercising jurisdiction is by referral of the alleged crimes to the court by the U.N. Security Council under its Chapter VII authority. This avenue is almost certainly a dead end, as Russia (and likely China) would be inclined to use their veto powers to halt any such referral. However, Article 16 of the statute provides for the “Deferral of Investigation or Prosecution” by the ICC for a period of 12 months after a request by the Security Council to that effect; such a resolution is just as unlikely due to the veto powers of the U.S., U.K. and France. In other words, from both the Russian and Western perspectives, the Security Council seems too deadlocked to play an effective role in this ICC process. The third and final basis for jurisdiction is the prosecutor’s own prerogative. Under Article 13(c), the prosecutor may initiate an investigation proprio motu (“by one’s own motion”) under the procedures outlined under Article 15. The process to initiate the investigation begins with the aforementioned preliminary examination by the prosecutor’s office. After examining the information received—and any additional information sought from states, the U.N., or even written or oral testimony—the prosecutor must determine whether there is a “reasonable basis” to proceed with an investigation. At this point, the prosecutor can submit a request to the Pre-Trial Chamber (PTC) assigned to the case for authorization of a full investigation. The PTC must also determine whether there is a reasonable basis to proceed, as well as whether the case itself appears to fall within the court’s jurisdiction. If the PTC concludes that there is not reasonable basis, the prosecutor may continue submitting further information for the chamber’s consideration. However, per Article 12 of the statute, jurisdiction by the first (state party referral) and second (proprio motu investigation) options can exist only where the states in question either are parties to the statute or have accepted the court’s jurisdiction. Since neither country is a party to the statute, either the country whose nationals are accused of the crimes or the country on whose territory the crimes occurred would have to accept the court’s jurisdiction. In this case, Russia—as the state whose nationals (the “senior officials of the Russian Federation”) are accused of crimes—is unlikely to do so. The conduct in question occurred within Ukraine’s territory, so the jurisdictional prerequisite is satisfied by Ukraine’s declarations accepting ICC jurisdiction over war crimes and crimes against humanity. In light of Ukraine’s acceptance of jurisdiction, the necessary conditions for the ICC’s exercise of jurisdiction are indeed present. As a result, Khan announced on Feb. 28 the existence of a proprio motu preliminary examination and intention to refer the case to the PTC. In his statement, he announced his conclusion that a rational basis indeed exists. On March 2, the president of the ICC officially assigned a PTC to determine whether a full investigation should be opened. In combination with the new referrals from 39 state parties, these conditions ensure that there are multiple avenues for the court to exercise its jurisdiction over war crimes and crimes against humanity. Khan has asserted that his office’s investigation would encompass an expanded probe of both the preliminary inquiry and any crimes stemming from Russia’s latest invasion. There is, however, one glaring crime missing from the prosecutor’s preliminary examination: The court does not have the ability to investigate the crime of aggression. Unlike the more “traditional” crimes under the court’s jurisdiction, the crime of aggression was introduced to the court’s authority in 2018 by amendments to the Rome Statute, primarily to Article 15. Under Paragraph 4, the court is explicitly barred from exercising jurisdiction over crimes of aggression by the nationals of, or on the territory of, a state that is not party to the statute. This invalidates the ability to exercise jurisdiction over aggression by Russia in the territory of Ukraine. Even a proprio motu investigation of aggression requires a determination by the U.N. Security Council that an act of aggression has occurred, which is unlikely for the same reasons as discussed above. Khan has acknowledged this inability in a statement released one day after Russia’s invasion: “Given that neither Ukraine nor the Russian Federation are State Parties to the Rome Statute, the Court cannot exercise jurisdiction over [the crime of aggression] in this situation.” The Admissibility of the Case If the ICC were to approve an investigation in the coming days, what would be the next steps for the case? At this point in the pre-trial process, questions of admissibility would need to be addressed. Under Articles 17 and 18, a case is inadmissible if a state with jurisdiction over the crime is either currently investigating or prosecuting it, or has completed the investigation and decided not to prosecute—unless the investigating state is unwilling or unable to genuinely carry out said investigation or prosecute. Article 18 lays out the process for addressing these admissibility questions. Once a state party has referred the crimes to the court or the prosecutor has initiated a proprio motu investigation, the prosecutor must formally notify the states that would normally exercise jurisdiction over the crimes, in this case, Russia and Ukraine. Following notification, the parties have one month to inform the court of either an ongoing or completed investigation of the Article 5 crimes, and can request that the prosecutor defer to the state’s investigation, stopping the ICC proceedings in their tracks. At this point, the unwilling and unable test comes into play. Inability to investigate or prosecute is likely not relevant in this case, as the statute generally attributes inability to the “total or substantial collapse or unavailability of its national judicial system,” an issue Russia does not seem to have. However, an unwillingness on their part to address the crimes alleged could pave the road to admissibility. The test for the court to determine unwillingness lies in Article 17(2). Of the three conditions listed, only one need exist for an unwillingness determination: (a) The state is shielding the persons concerned from responsibility for the Article 5 crimes; (b) there is an “unjustified delay” in the proceedings inconsistent with an intent to the bring the accused to justice; or (c) there is a failure to conduct the proceedings independently or impartially, also inconsistent with an intent to bring the accused to justice. These standards are quite broad and leave plenty of room for the PTC to make an unwillingness determination should Russia attempt to block the prosecutor’s investigation under Article 18. If the determination is made, then the case is admissible and the prosecutor may proceed with his investigation into Russia’s activities. It is worth keeping in mind, however, that the prosecutor and the state parties may avail themselves of a PTC challenge to both jurisdiction and admissibility under Article 19, as well as of an appeals mechanism to challenge PTC rulings under Article 82. In that case, even an unwillingness determination by the PTC does not guarantee an investigation, much less a trial. Accusations and Evidence of Russian War Crimes Grow Since Russia began its invasion of Ukraine on Feb. 24, the Ukrainian government, numerous international human rights groups, and international actors have either directly accused or raised concern that Russia’s military action and bombardment of populated urban areas could amount to war crimes. On Feb. 28, President Zelensky accused Russia of war crimes after the Russian military launched a day of heavy airstrikes and artillery on Ukraine’s second-largest city, Kharkiv. Zelensky’s statement came among broader reports of intense shelling across numerous Ukrainian cities, striking several residential buildings. Human Rights Watch reported that it had documented the use of cluster munition rockets in at least three residential areas in Kharkiv on Feb. 28. Cluster munition rockets are “inherently indiscriminate,” and such use could “constitute a war crime,” the organization said. Amnesty International said that it had collected evidence of Russian strikes resulting in “deaths of civilians [from] indiscriminate attacks on civilian areas and infrastructure,” including “strikes on protected objects such as hospitals and schools.” Only a day after Russia’s invasion, on Feb. 25, the organization announced in a press release that the “forensic analysis of three separate attacks provides ‘irrefutable evidence’ of breaches of laws of war.” On Feb. 28, Lithuania officially referred the situation to the ICC, followed on March 2 by 38 additional countries to the Rome Statute. The same day, U.K. Prime Minister Boris Johnson, in a speech to Parliament, said that there appeared strong evidence to support accusations of war crimes. He stated: What we have seen already from Vladimir Putin’s regime in the use of the munitions that they have already been dropping on innocent civilians, in my view, already fully qualifies as a war crime. On March 6, U.S. Secretary of State Antony Blinken said that the U.S. government had seen “very credible reports of deliberate attacks on civilians, which would constitute a war crime.” He noted that the U.S. government was working to document evidence in order to ensure that the proper organizations would be able to investigate “whether war crimes have been or are being committed.” On March 9, multiple news outlets and Ukrainian government officials reported that Russian airstrikes had struck a hospital complex in Mariupol. President Zelensky described the attack as a “direct strike” and an “atrocity.” The incident drew international condemnation and came as the Ukrainian government said that Russia was impeding the evacuation of civilians along designated corridors from besieged cities across the country. Instances were reported of Russian shelling hitting points along the corridors, causing a halt to several evacuations. Russia’s past actions in Syria, where “airstrikes often appeared to be recklessly indiscriminate,” according to a 2016 Human Rights Watch report, have raised concerns that Russia may increasingly resort to similar tactics as it continues to face heavy resistance and high casualties. Although the court’s investigation is likely to span some time as the conflict continues, there are several clauses within the Rome Statute that the ICC could consider in its evaluation of the situation in Ukraine. Specifically, these are likely to include the categories of crimes against humanity and war crimes—encompassed in Articles 7 and 8, respectively, of the Rome Statute. In particular, Article 8 defines what constitutes war crimes and states that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” This would indicate that the court would likely seek to pursue those in a leadership position responsible for planning or sanctioning specific actions determined to constitute a war crime. Indeed, historically, the ICC has prosecuted many former military leaders and heads of state. Numerous provisions in Article 8(2) define specific war crimes potentially relevant to the ICC’s forthcoming investigation, specifically in light of the aforementioned concerns raised by multiple parties regarding Russia’s military action in Ukraine. These include the following: Article 8(2)(b)(i): “Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.” Article 8(2)(b)(ii): “Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.” Article 8(2)(b)(iv):“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated. ” Article 8(2)(b)(iv) is reflective of Article 85(3)(b) of the Geneva Convention Additional Protocol, which expressly addresses indiscriminate attacks and notes both loss of life or injury to civilians as well as damage to civilian objects. It states, in full, that a violation of the convention will constitute: Launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects. These articles are a few of the central provisions that reflect the basis for concerns raised by the Ukrainian government, human rights groups and others across the international community regarding Russia’s military actions. As a result, they could become central to the ICC’s investigation. Of course, the critical element in each of the articles mentioned is intention. To bring a successful case in any situation, the court has to prove that acts in violation were committed “intentionally” or “in the knowledge” of the effect that such action would or could have. [ Genocide Watch comment: The authors are wrong about the need to prove "intentionality" for war crimes and crimes against humanity. Proof of Intent is required for genocide. But the acts themselves plus knowledge of the acts are sufficient to prove crimes against humanity and war crimes.] Conclusion The course of the ICC’s investigation will surely be a source of significant attention and a significant test of the court’s ability to effectively investigate crimes amid an ongoing conflict. Its jurisdiction to investigate the situation in Ukraine is laid out by the Ukrainian government’s two declarations explicitly accepting the jurisdiction of the court over crimes committed on its territory, alongside the referral received in recent days by 39 state parties to the Rome Statute. Since Russia’s invasion on Feb. 24, serious questions have emerged over its deployment of airstrikes and shelling targeting densely populated areas, resulting in a rising number of civilian casualties. The international community has repeatedly expressed concern over these events, explicitly raising the possibility of war crimes. As the conflict unfolds and further information develops, it’s worth following the development of the court’s investigation. Editor's note: A previous version of the piece erroneously stated that the PTC has 120 days from the date of the request to decide whether to authorize the full investigation. This has been corrected. PTC approval was not needed here, because state parties referred the situation to the prosecutor for investigation. Copyright 2020 Lawfare and Jaime Lopez, Brady Worthington

Ukrainian President Zelensky Credit: Associated Press Russian shelling and bombing of civilians is a war crime. Its invasion constitutes the crime of aggression. Its bombardment has caused the forced displacement of over 2 million Ukrainians, a crime against humanity. Vladimir Putin, his generals, and the planners of this invasion should be put on trial for war crimes, aggression, and crimes against humanity. Russian troops invaded Ukraine's Donbas and Luhansk provinces on February 23, 2022. They have now invaded Ukraine from all sides. The Russian army and airforce are relentlessly shelling and bombing civilian neighborhoods and even maternity hospitals in Ukraine. NATO, the European Union, and the United States have sent anti-tank missiles and other weapons for Ukraine’s self-defense, but not enough to drive back Russian tanks and air power. Both US President Biden and the Secretary-General of NATO, Jens Stoltenberg, have announced that no US and NATO troops will be deployed to Ukraine to counter the Russian invasion. The US has rejected Poland's offer to donate its MIG warplanes to the US to transfer to Ukraine in return for their replacement with US F-16s. The US and NATO have refused to impose a no-fly zone over Ukraine out of fear that it would lead to air battles between Russian and NATO airplanes. Yet Ukraine has requested this assistance for its self-defense. Such aid would be legal and is desperately needed to stop Russian bombing. Fear should never be a basis for US and NATO foreign policy. The US and NATO fear widening the war beyond Ukraine. They also fear Putin's veiled threat to use Russian nuclear weapons. Russia has over 2000 tactical nuclear weapons, the type most likely to be used in a limited war. The US and NATO have only 200 such weapons. Any use of nuclear weapons would be catastrophic. The US and NATO have not effectively countered Putin's nuclear threat. The only strategic response is to make it clear to Putin that any use of nuclear weapons by Russia, tactical or intercontinental, would result in massive nuclear retaliation that would totally destroy Russia. To be credible, this response must accompany actual preparations. Massive Assured Destruction (MAD) has prevented the use of nuclear weapons since 1945. The US and NATO should remind Putin that MAD is still NATO doctrine. President Biden has denounced the Russian aggression as a clear violation of international law, including the UN Charter. The International Criminal Court has begun an investigation of these crimes. Ukraine has also launched a case against Russia in the International Court of Justice. The ICC should immediately increase its staff to collect evidence of these war crimes and to investigate and charge Putin, Russian generals, and other planners and perpetrators of these war crimes and crimes against humanity. The US and NATO have imposed crippling economic sanctions against Russia. But there is little likelihood that such sanctions will deter Putin from conquering Ukraine, which he considers to be a part of Russia. Putin will not stop with Ukraine. Putin's ultimate objective is the restoration of the Soviet empire. Trump's US policy of appeasement of Putin increased the likelihood of a bloody Russian invasion of Ukraine. The refusal of the US and NATO to directly join Ukraine in its military defense will likely result in a Russian conquest. But the heroic resistance of the Ukrainian people has shown that Russia will be unable to govern Ukraine. Ukraine will again be free. Due to Putin’s Russian invasion of Ukraine, Genocide Watch considers Ukraine to be at Stage 5: Organization, Stage 6: Polarization, Stage 7: Preparation, Stage 8: Persecution, Stage 9: Extermination. Genocide Watch Recommends: The UN Security Council should vote on a Chapter 7 resolution calling on Russia to immediately withdraw its troops from Ukraine. When the UNSC Resolution is vetoed by Russia, the Uniting for Peace Resolution should be invoked, and a Special Session should be called of the UN General Assembly. There a resolution should condemn Russia's invasion, authorize economic and political sanctions by all UN members, and authorize all other means necessary to counter the Russian invasion. The United States, NATO, and the European Union should impose crippling economic sanctions against Russian and Belarus companies and elites and cut off Russia's financial ties with the West. NATO should continue to provide massive military aid to Ukraine, Georgia, and the Baltic States to assist their self-defense against Russian invasion. NATO should deploy over 300,000 NATO troops to Poland, Romania, and the Baltic States. Ukraine's elected government should call on Ukrainian civilians to non-violently resist Russian rule in areas Russia seizes in its invasion. The Ukrainian government should seek an immediate ceasefire and a peace agreement with Russia even if Ukraine must sign a written promise to never join NATO. Promises can be broken. Wars break human lives. Notes: For a comprehensive synopsis of the political, economic, social, and historical aspects of the conflict in Ukraine please see the Council on Foreign Relations Backgrounder. See also Prof. Timothy Snyder’s “Putin’s Case for Invading Ukraine Rests on Phony Grievances and Ancient Myths” (Washington Post, January 26, 2022). Ukraine has a long history of genocide. The Soviet Union, under Joseph Stalin, starved millions of Ukrainians in the 1932-1933 Holodomor. Stalin also deported the entire population of Crimean Tatars to Central Asia in 1944, costing many thousands of lives. Crimean Tatars continue to be discriminated against in their own homeland. The Jewish population of Ukraine was nearly annihilated by centuries of pogroms and anti-Semitism, climaxing in the Nazi Holocaust, which killed two million Jews in Ukraine. Ukrainian militias assisted the Nazis in their genocide. Leaders of independent Ukraine have denounced this cooperation with Nazis, and recognized the horror of the Holocaust.

Could Russia be Suspended from the United Nations? EJIL: Talk! March 1, 2022 Written by Rebecca Barber The General Assembly is currently meeting in Emergency Special Session on Ukraine, and will likely pass a resolution condemning Russia’s aggression, demanding the withdrawal of troops, and urging a peaceful resolution to the crisis. Such a resolution will be an important step, but also begs the question: if these appeals for peace are not heeded, what could be the Assembly’s next step? The possibility of the General Assembly recommending sanctions has been considered in a previous post on this forum. This post considers the possibility of the Assembly going further still, and suspending Russia from the UN. The possibility of a member state being suspended from the UN is described by article 5 of the UN Charter. That article states that: ‘a member of the UN against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.’ In case of any ambiguity in the text of this article (which there really isn’t), the UN Office of Legal Affairs has confirmed that the General Assembly may only exercise its power of suspension if: (a) preventive or enforcement action has been taken by the Security Council against that member; and (b) the Council has recommended the suspension (see here, at p. 170). Article 5 does not provide a basis for Russia’s suspension from the UN, because the Security Council hasn’t taken preventive or enforcement action against Russia, and even if it had, Russia would presumably veto a resolution recommending its own suspension. It’s not possible to get around the veto issue by arguing that a Security Council resolution recommending suspension would be procedural in nature – and as such, not subject to the veto – because article 18(2) of the Charter lists ‘the suspension of the rights and privileges of membership’ as an ‘important question’. Article 5 of the Charter is not completely the end of the road on suspension, however. There are two dimensions to a state’s participation in the UN: the actual membership of the state (the subject of article 5 of the Charter); and the representation of that state at the General Assembly’s sessions. Matters of representation are considered in the context of the General Assembly’s credentials process, which is the process by which the Assembly assesses the eligibility of individual delegates to represent their states at the Assembly’s annual sessions. The process is essentially procedural in nature. It is regulated not by the UN Charter but by the Assembly’s rules of procedure, which state that ‘[t]he credentials of representatives … shall be submitted to the Secretary General if possible not less than one week before the opening of the session’, and that they shall be ‘issued either by the Head of the State or Government or by the Minister for Foreign Affairs.’ While the credentials process is usually a procedural one, from time to time the process inevitably requires the General Assembly to make a judgment regarding the legitimacy of the government (or regime) that a delegate represents. Such is the case when two competing authorities claim at once to represent their state, as was the case last year in relation to Afghanistan (Taliban vs deposed government in exile) and Myanmar (junta vs National Unity Government). In such situations, the credentials process effectively gives the General Assembly the power to decide which authority should be regarded as the legitimate representative of the state – at least so far as the UN is concerned. Russia, however, is not a case of competing authorities claiming at once to represent the same state, but one government seriously violating peremptory norms of international law as well as the principles of the UN. Can the credentials process feasibly be exploited to suspend a state in such circumstances, as a way of circumventing article 5? The answer is yes, because it has been done before. The General Assembly has on two occasions used the credentials process to effectively suspend a state from the UN. The most recent was in relation to Cambodia in 1997, when the Assembly received credentials from two competing authorities, both claiming to represent Cambodia. The Assembly decided to defer its decision on credentials, explicitly on the understanding that Cambodia’s seat at the Assembly would remain temporarily unoccupied (see here and here). The particular circumstance pertaining to that decision was that there was a process of national reconciliation underway, which the Assembly did not wish to influence (see discussion here). The much more pertinent example is South Africa in 1974. In the context of international condemnation of apartheid, in the early 1960s the General Assembly passed a resolution calling on the Security Council to consider expelling South Africa from the UN pursuant to article 6 of the UN Charter, however the proposal was not supported by the Council’s five permanent members. In the early 1970s the Assembly consistently declined to accept South Africa’s credentials (see here, for eg), and in 1974, the General Assembly President ruled that this meant that South Africa was excluded from participating in the work of the UN. Specifically, the President said that: ‘on the basis of the consistency with which the General Assembly has regularly refused to accept the credentials of the delegation of South Africa, one may legitimately infer that the General Assembly would in the same way reject the credentials of any other delegation authorised by the Government of the Republic of South Africa to represent it, which is tantamount to saying in explicit terms that the General Assembly refuses to allow the delegation of South Africa to participate in its work’ (see Jhabvala, p. 615). Thus, as Alison Duxbury explains, ‘in using the credentials process in this way, the General Assembly effectively sidestepped the article 5 requirement that both the major political organs of the UN must be involved in a suspension decision’. The legality of the Assembly’s action in relation to South Africa is contested. A 1970 opinion of the UN Legal Counsel asserts that ‘the participation in meetings of the General Assembly is … one of the important rights and privileges of membership’, and that ‘suspension of this right through the rejection of credentials would not satisfy the [requirements of article 5] and would therefore be contrary to the Charter.’ On this view, with which several scholars agree (eg, Schermers and Blokker, p. 222), the Assembly’s exclusion of South Africa was clearly ultra vires. Other scholars disagree, however. Jhabvala, for example, asserts that the suspension of South Africa was intra vires, if only because of the ‘legal gap’ and ‘political latitude’ that characterises the credentials rules and process; and even Schermers and Blokker concede that ‘there is general disagreement’ regarding whether the credentials process can be used to exclude a state from the UN – they suggest that ‘generally Western countries reject’ such a possibility, whereas ‘other countries are mostly in favour of it’. Other scholars take a middle ground, regarding the Assembly’s practice on South Africa as perhaps not quite illegal, but as ‘sui generis, not as establishing a practice that substitutes the General Assembly for the Security Council as the UN organ empowered to suspend or expel members’ (Halberstam, p. 191). Whatever view one takes on the question of legality, the fact is that the General Assembly has used the credentials process to exclude a state from the UN. On this point, it is pertinent to recall the well-established principle applicable to the interpretation of the constituent instruments of international organisations, that such organisations are – as a starting point at least – responsible for interpreting their own powers. In the case of the UN, this was made clear at the time of the drafting of the Charter. The question of which organ should be responsible for interpreting the Charter was assigned to a sub-committee, and the report of that committee – ultimately accepted – said that each organ of the UN was expected to ‘interpret such parts of the Charter as are applicable to its particular functions’ (see Goodrich, p. 251). Prof. Louis Sohn asserts simply that ‘if the General Assembly thinks action is necessary, it can take it.’ In relation to South Africa in 1974, the Assembly did think that action was necessary, and it did take it, and there is no reason in international law that it could not do so in again in relation to Russia/Ukraine. The credentials of Russia’s current representative to the UN were accepted by the General Assembly last year, but under the Assembly’s rules of procedure it is open to any member state to raise an objection to that representative, in which case he would remain seated provisionally, ‘until the Credentials Committee has reported and the General Assembly has given its decision’. It’s unlikely to be the option pursued in the Assembly’s first resolution on Ukraine, but given the extent to which international law is being undermined, nothing should be off the table. Rebecca Barber is a Research Fellow with the Asia Pacific Centre for the Responsibility to Protect and a PhD Candidate at the TC Beirne School of Law, University of Queensland.

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Congressional Briefing on “Impact of Religious Persecution on Women in India” on March 9, 2022 at 12 noon EST / 10.30 pm IST. This briefing commemorates International Women’s Day on March 8. Please register at: https://tinyurl.com/Briefing9March Panelists: Linda Sarsour, Cofounder, Women’s March Bindu Ammini, Dalit women’s rights activist Rev. Dr. Evangeline Anderson-Rajkumar, Dalit Womanist-Theologian Aakriti Bhatia, Hindus for Human Rights & Paigam This Congressional Briefing is co-hosted by: Amnesty International USA, Genocide Watch, 21Wilberforce, Hindus for Human Rights, Indian American Muslim Council, International Christian Concern, Jubilee Campaign, Dalit Solidarity Forum, New York State Council of Churches, Federation of Indian American Christian Organizations of North America, India Civil Watch International, Students Against Hindutva Ideology, Center for Pluralism, American Muslim Institution, International Society for Peace and Justice, Association of Indian Muslims of America, The Humanism Project (Australia)

Russia’s “genocide disinformation” and war propaganda are breaches of the International Convention Concerning the Use of Broadcasting in the Cause of Peace and fall within the ICJ’s jurisdiction Written by Talita de Souza Dias On EJIL: Talk! Notice of correction by the author, as reviewed by the editors: Russia has made a reservation to Article 7 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace (the compromissory clause granting the PCIJ jurisdiction over the interpretation and interpretation of the Convention) upon ratifying the Convention. The reservation reads as follows: ‘The Union of Soviet Socialist Republics does not consider itself bound by the provisions of article 7 of the Convention under which any dispute that may arise regarding the interpretation or application of the Convention which has not been settled by means of negotiations shall be submitted to arbitration or to judicial settlement at the request of one of the Parties, and declares that, for the submission of such a dispute to arbitration or to judicial settlement, the agreement of all Parties to the dispute shall be essential in every separate case (emphasis added).’ This reservation means that, contrary to what was argued in the post, the ICJ would not have automatic jurisdiction to hear cases concerning Russia’s violation of the International Convention Concerning the Use of Broadcasting in the Cause of Peace, including its genocide disinformation and war propaganda with respect to Ukraine. Instead, all parties to any such a potential dispute, including Russia, would have to specifically consent to the ICJ’s jurisdiction to hear the case. As readers may know from earlier posts on this blog (see here), Ukraine has recently filed an application before the International Court of Justice (ICJ) against Russia on the interpretation and application of the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). In this post, I argue that separately from this case, Russia’s false allegations of genocide as a pretext to invade Ukraine – which seem to lie at the heart of Ukraine’s ICJ application – amount to a violation of Articles 2, 3 and 4 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace. Such a breach may be invoked by any state party to this convention, including before the ICJ. Russian disinformation in Ukraine’s ICJ application under the Genocide Convention In its ICJ application for provisional measures, one of Ukraine’s core arguments is that: ‘26. […] the Russian Federation’s declaration and implementation of measures in or against Ukraine in the form of a “special military operation” declared on 24 February 2022 on the basis of alleged genocide, as well as the recognition that preceded the military operation, is incompatible with the Convention and violates Ukraine’s right to be free from unlawful actions, including military attack, based on a claim of preventing and punishing genocide that is wholly unsubstantiated.’ (emphasis added) Thus, Russian “genocide disinformation” seem to lie at the heart of Ukraine’s claim that Russia breached Article I of the Genocide Convention. Relatedly, Ukraine also asks the Court to: Adjudge and declare that, contrary to what the Russian Federation claims, no acts of genocide, as defined by Article III of the Genocide Convention, have been committed in the Luhansk and Donetsk oblasts of Ukraine. This request is akin to asking the Court to clear up Ukraine’s reputation, in line with Article III of the Genocide Convention. It also reads as a claim that Russia must refrain from engaging in disinformation about the commission genocide or war propaganda as a justification to prevent it. Russia’s breach of Articles 2 to 4 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace Notwithstanding the merits of Ukraine’s case under the Genocide Convention, a different convention explicitly requires states to refrain from and prevent acts of this sort and entitles other states parties to enforce these negative and positive obligations. This is the often-overlooked International Convention Concerning the Use of Broadcasting in the Cause of Peace, adopted in 1936 under the auspices of the League of Nations. Specifically, Article 2 requires states parties to: ‘ensure that transmissions from stations within their respective territories shall not constitute an incitement either to war against another High Contracting Party or to acts likely to lead thereto.’ Similarly, Articles 3 and 4 provide that: Article 3. The High Contracting Parties mutually undertake to prohibit and, if occasion arises, to stop without delay within their respective territories any transmission likely to harm good international understanding by statements the incorrectness of which is or ought to be known to the persons responsible for the broadcast. They further mutually undertake to ensure that any transmission likely to harm good international understanding by incorrect statements shall be rectified at the earliest possible moment by the most effective means, even if the incorrectness has become apparent only after the broadcast has taken place. Article 4. The High Contracting Parties mutually undertake to ensure, especially in time of crisis, that stations within their respective territories shall broadcast information concerning international relations the accuracy of which shall have been verified – and that by all means within their power – by the persons responsible for broadcasting the information. This Convention basically covers all instances of Russian disinformation, war propaganda and other information operations that ‘harm good international understanding’ between states parties. This is exactly what Russia has done with the false genocide allegations and its subsequent call for the invasion of Ukraine. As the successor state to the Union of Soviet Socialist Republics, Russia is a party to the International Convention Concerning the Use of Broadcasting in the Cause of Peace. Though Ukraine is not a party to the Convention, several states that have condemned Russia’s military actions in Ukraine are parties thereto, including several members of NATO, such as Norway, Finland, Estonia, Denmark, Luxembourg, Latvia, Hungary, and Bulgaria (see here and here for the full list of ratifying states). Importantly, Article 7 of the International Convention Concerning the Use of Broadcasting in the Cause of Peace includes a compromissory clause granting the Permanent Court of International Justice (PCIJ) jurisdiction to hear disputes over the interpretation or application of the Convention. And by Article 37 of the ICJ Statute, the ICJ inherits the jurisdiction of the PCIJ granted via compromissory clauses. Insofar as the Convention Concerning the Use of Broadcasting in the Cause of Peace arguably incorporates erga omnes obligations, just like the Genocide Convention does, all states parties thereto should have standing to invoke Russia’s breach of Articles 2, 3 and 4 with regards to the information operations leading up to and justifying the invasion of Ukraine. This could be done before the ICJ or non-judicial fora, such as the UN General Assembly, which has in the past stressed the importance of this Convention in the field of freedom of information. While many states have politically condemned Russian disinformation and propaganda campaigns in the past, the time has come to do so under international law. Conclusion The exact scope and fate of Ukraine’s application against Russia regarding the interpretation and application of the Genocide Convention remain unclear. But whatever the outcome of this case, states parties to the International Convention Concerning the Use of Broadcasting in the Cause of Peace should not shy away from invoking Russia’s breach of Articles 2, 3 and 4 of this convention for carrying out a genocide disinformation campaign and war propaganda that led up to the invasion of Ukraine, including before the ICJ. (r) EJIL: Talks

An Eritrean refugee who fled his home in a refugee camp after fighting broke out in Ethiopia’s northern region of Tigray poses for a portrait behind a curtain in Addis Ababa, Ethiopia, June 25, 2021. To match Special Report ETHIOPIA-CONFLICT/ERITREA REUTERS/Maheder Haileselassie The U.N. Human Rights Council has picked the former chief prosecutor of the International Criminal Court to lead a panel investigating violations of human rights in the conflict in northern Ethiopia, the council said on Wednesday. Ethiopian federal troops went to war with rebellious Tigrayan forces in November 2020. Since the war erupted, Reuters has reported atrocities by all sides, which the parties to the fighting have denied. The council voted in December to establish an independent investigative commission, to look into alleged violations by all sides and to identify perpetrators with a view to accountability. Fatou Bensouda, a Gambian national who was chief prosecutor at the ICC between 2012 and 2021, will lead the panel of three, the council said in a statement. The panel will "establish the facts and circumstances surrounding the alleged violations and abuses, collect and preserve evidence, to identify those responsible, where possible," the council said. It will also "make such information accessible and usable in support of ongoing and future accountability efforts." The team will brief the council during its mid-year session and present a written report towards the end of the year. Gedion Timothewos, the Ethiopia's minister of justice, said they will cooperate with any investigation "focused on the genuine promotion and protection of human rights." "There is light at the end of the tunnel and the Ethiopian people in their collective wisdom will opt for peace and reconciliation," he told the council in Geneva. Thousands of civilians have died and millions have fled in the conflict between the federal government and rebellious forces including fighters loyal to the Tigray People's Liberation Front (TPLF), which dominated Ethiopia's ruling coalition for nearly 30 years. The TPLF welcomed the council's move to investigate atrocities in December, when the body passed a resolution to create it. Reporting by Stephanie Nebehay in Geneva; Writing by Duncan Miriri, Editing by William Maclean © 2022 Reuters.

A radio discussion hosted by Refugee Radio in the UK. Photo (c) Amjambo Africa. This programme is dedicated to the memory of Angelina, the beloved sister of our friend, Alex Ntung. Angelina was murdered by the DRC army in 2021, a victim of the genocide against the Banyamulenge. The Banyamulenge villages are burnt, the people are massacred and the survivors are driven into refugee camps which are then subject to attack, all under the nose of the UN. Why is this happening and what can be done to prevent their extermination? Featuring: Adele Kibasumba, the president of the Mahoro Peace Association; Amber Maze, the co founder of the Crane Center for Mass Atrocity Prevention; Dr Gregory Stanton, former Research Professor in Genocide Studies and Prevention at the George Mason University and the founder of Genocide Watch; Thomas Shacklock, Research Analyst at Genocide Watch Please note that this programme contains information about events that are inherently disturbing. While we have taken care to be as accurate as possible, some details of the lynching of Major Kaminzobe are still under investigation. You can listen to this discussion via the following link to Refugee Radio's website: https://refugeeradio.org.uk/2022/02/24/banyamulenge/

By Duncan Miriri The United Nations logo is seen on a window in an empty hallway at United Nations headquarters during the 75th annual U.N. General Assembly high-level debate, which is being held mostly virtually due to the coronavirus disease (COVID-19) pandemic in New York, U.S., September 21, 2020. REUTERS/Mike Segar NAIROBI, March 1 (Reuters) - At least 440 people were killed in violence between warring parties in the South Sudanese county of Tambura between June and September last year, the United Nations said in a new report on Tuesday. The killings were also accompanied by other atrocities, including the gang rape of a 13-year-old girl, the report said. The United Nations human rights agency blamed the violations and abuses on members of the Sudan People's Liberation Movement/Army in Opposition (SPLM/A-IO) and the South Sudan People's Defence Forces (SSPDF), and their respective affiliated militias. Both the SPLM/A-IO and SSPDF were not immediately available for comments. "We call on all parties to the conflict to hold to account all individuals implicated in the horrific killings, rape, and abductions, among other grave human rights violations," United Nations High Commissioner for Human Rights, Michelle Bachelet, said in a statement. Some 80,000 people were forced to flee their homes in the violence in the county, which is located in Western Equatoria state, which is controlled by SPLM-IO under the terms of a 2018 peace deal, which halted years of a civil war. Violence broke out in the area after troops from both sides, who were training jointly for re-integration into the national army, got into disagreements and picked up arms. In its report, the U.N. called on the South Sudanese government to investigate those responsible for the atrocities and to prosecute them. © Reuters 2022

Since its establishment, the Canadian government has mistreated and wiped-out Indigenous populations and cultures living within their borders. Although Indigenous peoples inhabited Canada for thousands of years, colonization efforts from European white settlers – particularly the English and French – have threatened these Native populations since the 16th century. Today, Indigenous activists and communities across Canada have called on the government for apologies, reparations, acknowledgments, and legislative changes to protect Indigenous Canadians. The Canadian Constitution recognizes three groups of Aboriginal peoples: First Nations, Inuit, and Métis. However, pre-colonial Canada was home to hundreds, if not thousands, of Indigenous tribes, each with their own cultures, languages, histories, and spiritual practices. Approximately 200,000 First Nations and Inuit people inhabited Canada when European settlers arrived in the 1500s. Their arrival led to a steep decline in Aboriginal populations through disease, warfare, forced removal, and cultural assimilation policies. Indigenous Canadians also suffered extreme religious and cultural genocide through residential schools in western Canada. Beginning in the late 19th century, the Canadian government constructed a system of boarding schools to ‘kill the Indian in the child’ and assimilate Indigenous people into white European society. Thousands of Aboriginal children were stolen from their homes and forced to forsake their culture and language. Some of these residential schools remained operational until as late as the 1970s and 1980s. The legacies and impacts of systemic discrimination against Indigenous Canadians continue to this day. The remains and unmarked graves of nearly 900 Indigenous children were discovered near former residential schools in British Columbia and Saskatchewan in the summer of 2021, a grim reminder of one of the darkest chapters of Canadian history. Because many residential schools did not cease operation until the late 20th century, the discovery of mass graves is unfortunately common and reopens painful memories of genocide for Indigenous populations. Today, Aboriginals make up 5% of the Canadian population, and most of these communities live on reserves through treaties with the Canadian government. However, resources are limited, and the standard of living in these communities is far below the Canadian average. The average employment rate of Indigenous communities is much lower than that of non-Indigenous Canadians, with 62.1% of the non-Indigenous population employed compared to the employment rate of 57.5% for Indigenous Canadians. Indigenous Canadians are also more likely to live in inadequate housing, have shorter life expectancies, suffer from diseases and illnesses, abuse drugs or alcohol, and commit suicide than non-Indigenous Canadians. Like Indigenous communities in the United States, First Nations groups in Canada also struggle to access basic needs such as clean drinking water. Because of Canada’s long history of colonization against Indigenous populations and lack of reparations towards these communities, Genocide Watch declares Canada to be at Stage 10: Denial. Genocide Watch recommends: Canada’s government order the immediate excavation of any remains from the sites of former Indigenous schools. Indigenous Canadians be given reparations for their suffering, either economic, physical/territorial, political, social, or cultural. The living conditions on Canadian reservations be improved by the federal government. Canadian companies be encouraged to hire from Indigenous communities to foster employment and economic growth on reservations. Download alert.

By Nat Hill, Co-Director of Research at Genocide Watch A long-form report on the historical and present genocide against the Roma people in Europe. Introduction The Roma, also known as the Romani people, Kale, Sinti, or Gitanos, are a diverse group of peoples whose ancestors originally migrated from the Indian Subcontinent. Although the Roma are more commonly known as Gypsies, many now consider this term many now consider a slur. There are an estimated 20 million Roma living across the world today, with the majority concentrated in Europe. The Roma people have their own unique set of languages, religious beliefs, culture, and economy. Roma life, particularly in Western Europe, is often associated with a nomadic existence; Roma people move from place-to-place trading and performing. A significant source of Roma identity derives from the theRomanipen, or Romani Code; however, such an attachment to the code is not universal. While many "Gadje” (the Roma term for non-Roma) still view Roma as nomads, Romani settlements, villages, and communities have existed in Europe for hundreds of years and have left an indelible mark on European culture and history. Roma still face systematic discrimination due to their ethnicity and lifestyle. Through this particular form of discrimination, known as"antigypsyism" or anti-Romani racism, the Roma face both official and non-official barriers to healthcare, education, housing, and cultural expression across Europe and other parts of the world. Hate crimes and acts of violence against Roma communities are commonplace. Right-wing and ultranationalist groups view the Roma as an existential threat to their nations and violently attack Roma or promote hate speech against the community. The following report will attempt to summarize the current and historic genocidal actions against the Romani community, as well as provide recommendations to better prevent violence against the Roma people. The Roma’s perceived nomadic lifestyle, distinct culture, and dark complexion have subjected them to consistent discrimination and persecution in Europe. For centuries, European rulers have oppressed, enslaved, and expelled Roma communities. Nazi Germany and its allies systematically exterminated an estimated 500 thousand to 1.5 million Roma due to their “racial inferiority,” in what the Roma now call the Porajmos ( “The Devouring”). Please find the full report below:

The 2400 kilometre long sand and rock wall through Western Sahara credit: Getty Images/ AFP/ Hertzog Western Saharan independence groups have been engaged in conflict with Morocco over its territorial sovereignty since Spain ended colonial rule in 1975. Following the declaration of a Republic by the nationalist group, the Polisario Front, Morocco invaded and occupied the territory. Since then, war has driven 158,000 Sahrawi people into refugee camps in Algeria. Moroccans now outnumber Sahrawis in Western Sahara. The Western province of Sahara is home to the indigenous Sahrawi people, a mixture of Berber and Arab descent. . The Polisario contends that Morocco’s refusal to allow West Saharan independence is a violation of Article 1 of the International Covenant on Economic, Social and Cultural Rights. Morocco claims that Spanish colonisation only suspended Morocco's traditional sovereignty over the territory, and Morocco is restoring its legitimate authority. In the 1980's Morocco constructed a 2700 km long sand and rock berm, known as the Moroccan Western Sahara Wall, it separates 80% of the western territory that is controlled by Morocco from the Polisario controlled east. 120,000 Moroccan troops patrol it. Over seven million landmines are strewn along it. The United Nations brokered a ceasefire in 1991 and established the Mission for the Referendum in Western Sahara (MINURSO) in 1991. The referendum to decide whether Western Sahara would be independent, or part of Morocco has never been held. In November 2020, the Polisario ended the ceasefire due to its frustration with endless referendum negotiations. The ‘open war’ has deteriorated into low-intensity clashes between the Moroccan army and the Polisario Front along the Moroccan wall, which runs through Western Sahara and the southwestern portion of Morocco. Morocco has launched missile bombardments, drone strikes, and attacks on the Polisario soldiers patrolling the Moroccan wall. In August 2021, Algeria publicly broke diplomatic relations with Morocco, citing the government’s ‘abandonment’ of efforts to resolve the conflict. From 1975 until a 1991 ceasefire, Morocco perpetrated numerous war crimes in Western Sahara. The Moroccan army used napalm and white phosphorus on Sahrawi refugee camps in Guelta Zemmur. Moroccan forces have arbitrarily detained, tortured, and murdered Sahrawi nationalists, many of whom were kept at the secret Tazmamert centre for 18 years. In 2015, a Spanish judge ruled that there was sufficient evidence to show that 11 former Moroccan officials could be tried for genocide against the Sahrawi by Morocco from 1976 to 1991. A Spanish High Court dismissed a charge of genocide against the Polisario leader, Brahim Ghali, after the prosecution failed to produce enough evidence against him. Morocco’s penal code punishes criticism of Morocco's sovereignty over Western Sahara with prison time or fines. It obstructs free assembly and association by banning Sahrawi self-determination meetings. Morocco is accused of extrajudicial imprisonment, and forced disappearances against activists and journalists. Due to attacks unimpeded by MINURSO and restrictions on the Sahrawi people, Genocide Watch considers Western Sahara to be at Stage 3: Discrimination and Stage 8: Persecution. Genocide Watch recommends: Moroccan forces should retreat from Western Saharan provinces and demilitarise the Moroccan wall. Morocco should allow the people of Western Sahara to participate in a referendum to determine whether they will be part of Morocco or become an independent nation. The Moroccan Government should help the UNHCR and IOM to resettle Sahrawi refugees in Algeria and Mauritania displaced due to the conflict.