The Russia-Ukraine war is forcing the world to acknowledge critical failings in how our international institutions operate. Specifically that it is unlikely they will hold Russian President Vladimir Putin accountable for war crimes.
Still, the ongoing war provides a long-overdue impetus to reform institutions such as the United Nations so we don’t find ourselves in a similar situation in the future. Cause for such optimism is found at different historical moments when critical events shocked nations so much, that tough reforms were made.
Before getting into some historical lessons, it is worth recalling the limitations of international law.
First, there is the International Criminal Court (ICC), which has prosecuted individuals, such as the former Liberian President Charles Taylor, for war crimes. The Court is now investigating Russia’s president over possible war crimes in Ukraine. But there are lingering doubts regarding whether the ICC can prosecute Putin, considering that neither Ukraine nor Russia is a state party to the Rome statute – the document that extends the court’s jurisdiction over its signatories. Moreover, there is consensus among experts that even if a legal path to prosecuting the Russian leader at the ICC is found, it would be all but impossible to bring him to court while he is still in power.
There are also the Geneva and Hague Conventions that establish rules for the treatment of civilians and prisoners during war, as well as article 39 of the UN charter, which denounces wars of aggression. Yet, evoking the Geneva or Hague Conventions, as well as the UN charter, requires the UN Security Council to issue a resolution to establish a tribunal. This will not happen because Russia is on the Security Council and has the power to veto any resolution.
The UN, with the Security Council’s unanimous support, created a special tribunal in 2002 to prosecute the former president of Serbia, Slobodan Milošević, for war crimes that were committed in the 1990s in the former Yugoslavia. This was possible because the disgraced leader had been overthrown from power.
Therefore, short of regime change, it is doubtful that Putin will find himself before an international court.
Despite this apparently bleak scenario, tracing the UN’s historical development shows both why we are at an impasse concerning accountability and where there is hope for reform.
During World War II in 1941, as Europe was occupied by Nazi Germany, Great Britain and the United States met to create the Atlantic Charter. This document, which proved a step towards creating the UN, proclaimed that states should not increase their territory at the expense of others, and should instead promote economic development, cooperation, and disarmament. The Soviet Union and China were subsequently included in meetings on the design of the UN at the Moscow and Tehran Conferences, and then at Dumbarton Oaks Conference and Yalta.
Deals were struck in these meetings, often due to Stalin’s fears of having Soviet interests neglected. Such compromises included allowing Soviet allies a place in the General Assembly, which is the main deliberative body of the UN. Deals also guaranteed the war’s victors – France, Great Britain, China, the Soviet Union, and the US – veto power in the Security Council over any binding resolution that could authorise the use of sanctions or military force.
In these early years of the UN, it was the Nuremberg Trials from 1945 to 1946 that brought to the world’s attention the scale of Nazi atrocities.
In 1947, with the world learning about the horrors of the Holocaust and pressed to think of ways to avoid genocide in the future, the drafting of the Universal Declaration of Human Rights (UDHR) began. Spearheaded by Eleanor Roosevelt, along with the Lebanese diplomat Charles Malik, the Chinese politician Peng Chung Chang, and representatives from six other countries, this document became the centrepiece of international human rights.
Even though the UDHR itself is not law, it has inspired the creation of two international conventions on human rights, specifically, the International Convention of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). These documents exist as international treaties, which establish committees to monitor the implementation of human rights, offer suggestions to states, and publish reports.
Despite such global initiatives, the veto power of Security Council members has allowed states to think principally in terms of national self-interest instead of international cooperation.
This, as photos of mass graves in Ukraine and evidence of the Russian military bombing civilian targets shock the world. For these reasons, now, the Russian invasion could propel reform of how the veto is exercised in the Security Council.
The change would make the UN more effective in terms of initiating actions, while also forcing states to second guess interventions abroad. The call is not to abolish the veto. Instead, provisions could be established to potentially override it, which could include a 2/3 vote of the General Assembly members, and/or four out of five members of the Security Council agreeing. The reform would be hard, as 2/3 of the UN General Assembly and all the members of the Security Council would have to approve it.
Therefore, change requires negotiating with Russia. In the short term, this may mean discussing the nature of Ukraine’s relationship with NATO. Russia’s claim to Eastern Ukraine and Crimea should also be considered. Again turning to history, let’s remember that the Soviet Union’s sizeable appropriation of areas in Poland after World War II went unchallenged so Stalin would agree to join the UN.
Meanwhile, on war crimes, nothing can stop organisations such as the ICC from investigating what’s happening. As devastating as it is to see the atrocities, daily, that are taking place in Ukraine, it is also necessary to think long-term, which means Security Council reform. This is difficult, but we’ve seen in the past how shocked nations managed to negotiate for the better of the international community. Weakening the veto, in this regard, would offer the conditions for our global institutions to facilitate cooperation, not continue to impede it.