The UN, the Criminal and International Law
What Russia’s Upcoming Presidency of the Security Council Says About Us
Ukrainian children are fleeing Russian aggression. Przemyśl, Poland February 27, 2022. Picture: Mirek Pruchniki
On April 1, 2023, Russia will preside for one month over the Security Council of the United Nations, as it had already done in February 2022. It was during his presidency that he launched the war of extermination against Ukraine. This new rotating presidency given to a permanent member of the Security Council comes two weeks after the International Criminal Court (ICC) indicted its president for war crimes and issued an international arrest warrant against him. This prospect rightly triggers international outrage. Also resurfacing is the fact that the Russian Federation, by a declaration of December 24, 1991, three days after the Almaty agreements, took over the seat of the former USSR without debate and without applying any specific legal rule—the fact that Russia is the largest country in the Commonwealth of Independent States (CIS) does not constitute one.
The decision of March 17, 2023 of the ICC has, by a historic indictment against Vladimir Putin and Maria Lvova-Belova, the Commissioner for Children’s Rights (her title being characteristic of the inversion of realities characteristic of the Russian regime), written into the law, whether or not it is ultimately followed by a judgment, what was, in sum, a glaringly obvious fact. Putin actually had been the author of war crimes and crimes against humanity for 23 years. These were visible and obvious to all, including heads of state and government.
By using its vetoes in the Security Council, the Russian regime had also blocked investigations into its crimes and those of its allies, in particular the Assad regime, and sabotaged the functioning of the Council. But hardly ever had governments explicitly denounced these crimes before February 24, 2022 and designated Putin as a war criminal. They had accepted the permanent presence in the highest international body of a state guilty of the highest crimes on the scale of crimes. Russia shares this dubious privilege with the People’s Republic of China.
As is usually the case, the leaders of democratic nations cowered in helplessness, citing the near impossibility of UN reform. They could certainly invoke the precedent of the reform proposed by Kofi Annam, which was quickly shown to be destined to be stillborn. But it could also be argued that this reform was all the less likely to succeed because no one perceived it as vital and even its supporters did not put all their weight into making it happen. One could also mention the project, supported by France since ten years, of a veto ban in the case of mass murders, which had even less chance of succeeding given the presence, in the Security Council, of countries practicing them. Precisely, any decision concerning the presence of Russia as a permanent member of the Security Council, which appears to be the only one not to condemn this Council in the long run, is existential for the future of the United Nations, but the excuse of a priori impotence has obliterated any search for a possibility. The straitjacket of the Charter, as heavy as it was, did not allow us to think that there was no solution.
The reality, as I have argued elsewhere, is that international law is most often set aside by Western foreign policy leaders, their ministers and part of the diplomatic corps. They thus detach the question of law from the main foreign policy guidelines and do not see it as an integral part of security strategies. Therefore, as far as the Russian regime is concerned, they made all the less the link between Moscow’s violations of fundamental rights and its threats to security, as their main desire was to minimize the latter.
This tendency is also found in the reaction to the decision of the International Criminal Court. For many, it is a matter of minimizing its scope in the name of the concrete and real difficulty of bringing Putin before the Court, but for some, it is also a matter of reducing or even contesting its impact, precisely because its concrete effects could be excessively limited for several years at least. They act as if the scope of this decision was finally summed up in the arrest and conviction of Putin and Lvova-Belova and as if there were no other. To treat the decision of the ICC with derision, levity and even irony says a lot about how little consideration they have for international law. The same sentiments seem to prevail with regard to the presence of Russia as a permanent member of the Security Council: it would be inevitable, and, moreover, not so serious.
Justice and history
The straightforward terms of the ICC’s decision cannot be passed over in silence nor can they immediately be without impact on the position of Russia and its president on the international scene. Even before the judgment, the indictment contains facts serious enough to have legal consequences. The prosecutor of the court, Karim Khan, has not hidden the fact that other indictments are expected to follow and other courts in Ukraine and elsewhere through universal jurisdiction will have to try lower level persons involved in Russia’s mass crimes. Perhaps one day a free Russia will also do this as Germany did after the surrender of the Nazi regime. There will be a Nuremberg moment.
On March 17, international justice wrote history, and tomorrow history will solemnly declare justice. I do not believe that we can say with Friedrich Schiller that “Die Weltgeschichte ist das Weltgericht”—a phrase that would ultimately imply a form of relativity of justice confused with the outcome of history. On the contrary, the prescription of justice constitutes a political orientation that guides the historical work of democratic leaders. It removes history as fate and restores it as a political choice.
The consequences are already clear: Putin is legally a fugitive and the 123 countries that are party to the Rome Statute are obliged to arrest him if he sets foot on their soil—it is known that this was not the case with Omar al-Bashir, the only other sitting head of state to be indicted by the Court. It also provides a compelling direction for the future. As Sam Greene points out, there can be no question of a return to business as usual with Putin’s Russia and a normalization of relations with him once the war is over.
Moreover, no democratic state can consider lifting sanctions against Russia until Putin and other criminals indicted by the Court have been handed over—regardless of other considerations such as the complete liberation of Ukraine, the return of deported children, the payment of war damages and the restitution of property stolen by Russia, including artworks looted from Ukrainian museums.
The decision of the ICC also has the advantage of condemning any attempt to negotiate with Putin’s regime, an idea that some were still toying with. Many, including myself, had long intended, well before February 24, 2022, to nip this temptation in the bud precisely because of the massive crimes committed by Putin and Russia. The indictment of Putin, who is now wanted by the world’s police forces, should now make it impossible. The only people Putin will be able to talk to, beyond his accomplices in the crime, will be the judges in The Hague.
Besides, beyond the classic Russian propagandists, the two categories that have expressed their displeasure with the ICC decision are, on the one hand, those who wanted to maintain this opening to negotiations, and on the other hand, the pseudo-realist analysts who want to establish a watertight partition between strategic analysis and considerations of international law. The former persist in their error of believing that all conflicts end with negotiations and that one day we will have to sit down at the table, as if the radical defeat of Russia were not the only solution that would bring peace. They are held back in their attempt to trivialize the Russian regime and its crimes. The latter are still stuck in a kind of indifference to, if not contempt for, international law, as if they had not understood that security is not linked to international law and as if they had lost all strategic compass. Indeed, the violation of this law is indicative of a security threat and the rules it imposes are an integral part of the interests we defend. They also failed to grasp that international law, as the Court also intended to show, is also a fundamental element of our deterrence system.
It is now up to the member states of the United Nations, and in particular its members who are committed to the rules of democracy, to transform this judgment within the organization itself.
Correcting the triple failure of the UN: the case for Russia’s expulsion
In terms of international law but also in practice, the UN is facing today a triple crisis that may lead to the bankruptcy of the legitimacy that is supposed to sustain the organization. The first is the paralysis of its Security Council in the face of mass murder. The second is the complicity of some of its agencies with criminal regimes, as has been demonstrated in particular in Syria. The third is the presence as permanent members of the Security Council of powers that do not respect the very foundations of the UN Charter. Solving the third problem, at least initially with regard to the Russian case, would go a long way to solving the first two.
Several personalities have solemnly declared that Putin’s Russia should be expelled from the UN Security Council. This is of course the case of the Ukrainian government, but also of the President of the European Council, Charles Michel, in particular. Its presence has long been unbearable because of the mass crimes committed; it became even more unacceptable when the International Court of Justice, on March 16, 2022, condemned its invasion of Ukraine; it has become unthinkable since its president was indicted for the worst crimes. The very idea that Russia could preside over the Security Council, with the powers that this confers on it, is one of those things that simple reason leads one to refuse. It would even destroy the principle of law. It seems even more incredible that the world’s leading leaders have not solemnly declared this.
Some analysts, far too quick to do so, had, almost in advance, as if they had pre-written their conclusions before examining the legal texts, hastened to decree that these formally excluded it. As much governed by intellectual laziness as by a political tremor, they had superficially analyzed the United Nations Charter and the texts derived from it.
They had made a slothful analysis of an inconclusive article. Article 6 of the Charter states: “If a member of the Organization persistently violates the principles set forth in the present Charter, it may be expelled from the Organization by the General Assembly on the recommendation of the Security Council.” As has been rightly pointed out by Dan Maurer, the traditional interpretation of this article does not allow for the exclusion of Russia. On the other hand, a literal interpretation, probably more in line with the wishes of the founding fathers of the UN, potentially allows a different interpretation. In this article, Maurer shows that an open interpretation seems to be in line with other articles of the Charter where a recommendation is mentioned (notably the appointment of the Secretary General, where the General Assembly has been called upon to decide following a blockage in the Security Council), and above all with that of the International Court of Justice, which favors the role of the General Assembly, which holds supreme legitimacy. It seems established that, on the one hand, the power in this matter lies with the General Assembly, and on the other hand, that the term “recommendation”, apart from indicating a wish that is not binding, is not the equivalent of a decision. As the texts stand, only a decision can be vetoed. It seems legitimate to think that a recommendation issued by nine members of the Security Council would be entirely valid.
But while the argument may seem too sophisticated or risky, other provisions allow for the exclusion of Russia, which has violated almost all the provisions of the Charter on which the United Nations is founded, and in particular Articles 1, paragraph 1 (maintenance of peace) and paragraph 2 (friendly relations, right of peoples to self-determination), 2, paragraph 3 (peaceful settlement of disputes) and 4 (refusal to “use force, against the territorial integrity or political independence of any state”), 4 (contractual obligation to respect the Charter) and 24 in particular (“In carrying out these duties, the Security Council shall act in accordance with the purposes and principles of the United Nations”—Russia has indeed regularly obstructed the Council’s work). It would therefore be extremely risky to allow a state, which for 23 years has violated dozens of international treaties and regularly, systematically and deliberately violated the UN Charter, not to be expelled. If this cannot be done by revising the Charter (Article 108 requires the agreement of all permanent members), there are other ways.
In a remarkable first summary article, Thomas D. Grant has provided convincing arguments, based both on Rule 17 of the Provisional Rules of Procedure of the Security Council and on Article 23(2) of the Charter, which does not provide for the possibility of a veto on procedural matters. There would thus be every reason to question Russia’s title as a permanent member of the Council, replacing the USSR, the only one still mentioned in the Charter. According to Grant, Russia’s violation of the 1991 Almaty agreements, the basis for Russia’s claim to be the successor to the USSR, and the Budapest Memorandum render the agreements reached at that time null and void.
In two other, much more detailed articles, which constitute the best doctrinal essays on the subject, Grant further clarifies his thinking. In sum, the fragile legal ground on which Russia had based its title of successor was shattered by its repeated and multiple violations of international law. In the Security Council, there should also be enough votes, if there is political courage, to vote for this, according to Grant. All in all, the General Assembly has repeatedly and overwhelmingly condemned Russia’s aggression against Ukraine and expelled Moscow from the Human Rights Council. It would be difficult to imagine that nine of the fifteen members of the Council would not follow it, provided that they have a minimum of consistency and medium-term vision.
Each of the two paths may have its advantages and disadvantages. The one that consists in questioning the title of the Russian Federation to replace the USSR could de jure lead to the retrospective annulment of all the decisions taken by the Council since the first day of Russia’s presence in the Council, that is to say, more than 32 years, unless the interpretation is that Russia violated all its commitments later, which is possible to ascertain a posteriori. It has the advantage of being radical, and in this case, faced with the large-scale annihilation enterprise launched by Russia, the democratic States must show this radicalism which they have lacked for 22 years.
The use of Article 6 might have the potential disadvantage of shifting the focus of real power from the Security Council to the General Assembly, but it could also be seen as going in the direction of history. Without even making such a shift in the internal balance of power in the organization, it would also be possible, with regard to voting, to use Article 27(3) of the Charter, which provides that a member of the Security Council that is a party to a dispute shall abstain from voting in decisions under Chapter VI (peaceful settlement of disputes) and Article 53(2) (regional application of the settlement). This point is all the more important to note that Western states, especially the other three members of the UN Security Council, have shown a constant fear of invoking this article, which they have somehow managed to make obsolete. They cannot be completely exonerated, as its application would have repeatedly thwarted Russia’s vetoes as an active participant in the Syrian conflict, thereby destroying the fiction it was using of a legitimate intervention at the request of the Assad regime.
The reality is that the United Nations has very strong latitude to act. It is clear that the main decision in this matter—to replace Taipei with Beijing as a permanent member of the UN Security Council—was taken without absolute conformity to the rules and with a form of legal recklessness. The choice that states, and in particular the major democracies, will have to make in this matter will be a political one, and they cannot hide behind an alleged legal impossibility, which is not in fact proven. They are therefore at a moment of decisive choice which, beyond Russia, will have a determining impact on the future of the New York organization.
Force and the application of law
So let us be perfectly straightforward: if they wish, the world’s leading democracies have the legal capacity to expel the Russian Federation from the Security Council and even from the UN. They should be able to do the same, on this second level, with Assad’s Syria and Lukashenka’s Belarus, among others. The legal basis exists. It is now a question of political will and intelligence—nothing more. It also requires that democratic governments have a clear understanding of both the role of the United Nations and international law. The mentioned example of Article 27(3) shows that the ambiguity of democracies in this respect is not new. Sam Greene, in unison with other voices, also rightly said in the above-mentioned article that it was also time for Washington to become a party to the Rome Statute. This would also be the best response to the fallacious arguments of whataboutism.
This decision can actually be made quite swiftly. It does not take months. Once taken, it will be immediately applicable. The chancelleries of democratic states must act in this sense as a matter of priority. Of course, we will still hear voices proclaiming that this is a new “provocation” to Russia, a sign of “escalation”, that expulsion from the United Nations would be crossing a “red line” because it would prevent it from controlling (we should say blocking) world security, or that it will be the ultimate “humiliation”, or even an act of “belligerence”. I doubt that they actually take seriously the destructive capacity that Russia has deployed in the Security Council and is still capable of exercising, even though they continue to attach too much importance to its threats. They have not understood that Moscow has destructive power not because it is strong, but because it is weak and can make us believe that it is powerful. If we want, Russia can collapse.
Without doubt, the action that we have the duty to lead within the UN is the first concrete translation of this war diplomacy that I mentioned in my previous essay. This must prevail now.
But it is also in the war itself that we must intensify our efforts. In a way, if it were really necessary, the decision of the ICC obliges us even more. Its only chance of being implemented lies in the total defeat of Russia. If we take the law seriously, we must immediately give Ukraine all the weapons it still lacks, which we have been saying for months. We have known that Putin was an absolute criminal, and we should have abandoned our posture a long time ago. The International Criminal Court binds us and orders us, so to speak, to defeat him. This order should, moreover, if the world were only “normal”, lead to this obligation to act directly on the part of the great powers for which I have been pleading since February 24, 2022, and even before.
In this respect, the decision of 17 March 2023 clearly sets the dividing line between a before and an after. It establishes an obligation. This is what these pseudo-realists, unrealistic in the face of threats and crime, oblivious to the law because they run away from the calls to order, were trying to escape by irresolution, complacency and silence. From now on, they will no longer be able to do so. Justice has set history in motion again.