The Week in Multilateralism
Friday, September 23, 2022
Putting Putin on Trial?
Since the full-scale Russian invasion of Ukraine began in February, the idea of using criminal justice to address the war and atrocities accompanying it has been at the center of the international debate. In early March, the International Criminal Court launched a full investigation of the conflict. Its chief prosecutor, Karim Khan, has visited the country several times and has made the conflict a priority. Meanwhile, Western countries have rushed to provide resources to Ukraine’s prosecutors as they gather evidence of crimes.
But there has been a nagging problem for those seeking legal accountability in the conflict: the ICC does not have jurisdiction over Russia’s leaders for the crime of aggression. And it is that crime, rather than war crimes or crimes against humanity, which most easily applies to senior Russian leaders. (The ICC can prosecute aggression in certain circumstances, but because Russia is not a court member and has not otherwise given its consent, the court cannot do so in this situation.)
That accountability gap into which Vladimir Putin’s original sin falls has prompted a hurried series of consultations on how to prosecute Russia’s leadership. One idea that gained traction initially was to set up a European-based special court to do the job. Others have proposed creating a special chamber within Ukraine’s legal system to pursue cases against Russian leaders.
Writing in Just Security this week, Yale law professor Oona Hathaway made the case for instead creating a tribunal through action by the UN General Assembly:
Proceeding through the General Assembly, rather than an ad hoc coalition of States or a European institution, would allow States from around the world to participate in and reaffirm the foundational norm that Russia has violated. This would send a powerful message that the crime of aggression is a crime whether committed in Europe or elsewhere. Indeed, a key purpose for prosecuting the crime of aggression is to repair an international system that Russia has now damaged and to signal to all countries that they must not follow in Russia’s footsteps.
Criminalization of aggression has always been an extraordinarily sensitive topic because the crime is designed specifically to fit senior government leaders (unlike war crimes, for example, which can be committed by the rank-and-file as well as by non-state actors). And while there remains significant support for Ukraine internationally, there is reason to doubt that the broader UN membership is ready to forge a mechanism for prosecuting Putin and his senior ministers. The number of countries that have ratified the ICC amendments on aggression remains modest, and there is significant regional variation. For example, relatively few Asian countries have joined the ICC or otherwise endorsed the idea of prosecuting aggression. And in Africa, there has been significant friction between key African governments and the court over head-of state immunity issues.
Biden Endorses Security Council Reform
In a speech to the UN General Assembly largely focused on Ukraine, U.S. president Joe Biden offered an unusually detailed endorsement of reforming the UN Security Council:
[T]he United States supports increasing the number of both permanent and non-permanent representatives of the Council. This includes permanent seats for those nations we’ve long supported and permanent seats for countries in Africa, Latin America, and the Caribbean.
The countries that the United States “has long supported” are presumably Germany, Japan, and India, all of whom have at various points received Washington’s blessing for permanent Council membership. But Biden appeared to break new ground in supporting Latin American and African permanent seats.
The administration’s foray into the long-running debate on Council reform—foreshadowed by several other administration statements—has raised eyebrows at UN headquarters. Rhetorically, Washington has long favored Council membership reform, but U.S. diplomats have expended little effort to forge an international consensus on the issue. For a brief Twitter thread on whether this time might be different, see here.
Can the WTO’s “Crown Jewel” Be Rescued?
In Bali, U.S. trade representative Katherine Tai convened a meeting of G20 trade ministers to discuss the World Trade Organization’s paralyzed dispute resolution system. I’ve written previously about this long-running saga and its potentially significant consequences for the multilateral system.
The story in short: the United States has for several years now refused to support the appointment of any new members of the organization’s Appellate Body. That policy began in the Trump administration but has continued even as the Biden team has taken over, much to the frustration of some close U.S. allies. As a consequence of the U.S. unwillingness to allow new members, the Appellate Body has now ceased to function. (Some WTO members have designed a work-around dispute resolution system, but it is makeshift and does not adequately replace the original.)
It’s not yet clear whether the meeting this week moved the ball forward in any significant way. And the Biden administration may see few domestic incentives for investing in the effort. Key parts of the Democratic coalition remain highly skeptical of the WTO (although Democratic voters still seem generally positive about international trade). Nor is there much support across the aisle for rebooting the WTO system; indeed, several conservative U.S. senators recently criticized what they perceived as hints that the administration is moving toward a resolution of the impasse. By contrast, Congressional voices in favor of rescuing a multilateral trade architecture that Washington helped create just a few decades ago have been muted.
“Bad to Worse to Horrific” in Myanmar
A UN expert painted a grim picture of Myanmar’s human rights situation to the UN Human Rights Council:
Tom Andrews, the United Nations special rapporteur on human rights in Myanmar, has said that conditions for Myanmar’s 54 million people have gone from “bad to worse to horrific” since the military seized power last year.
Speaking to the UN Human Rights Council in Geneva, Andrews said the international response to the crisis caused by the February 2021 coup had “failed” and that the Myanmar military was also committing war crimes and crimes against humanity, including sexual violence, torture, deliberate campaign against of civilians, and murder.
ASEAN has had the diplomatic lead in addressing the Myanmar crisis, but there is widespread dissatisfaction with its performance thus far. The UN Security Council this week reportedly considered a British-drafted resolution that would impose new restrictions on the military-led regime, although it was unclear whether China and Russia would permit such a move.
Brussels Elbows Budapest
The European Union’s long-running tussle with the Hungarian government of Viktor Orban has entered a new phase. The European Commission this week recommended slashing $7.5 billion in EU funds to the country and gave the government until mid-November to address concerns about erosion of democratic norms in the country. Politico offered this take on the latest developments:
While the Commission did recommend a slash in funds, it simultaneously lauded Hungary for offering reforms — and indicated it could get the money if it followed through. Budapest was also given a two-month window to implement its changes, leaving civil society groups howling that Brussels should know by now not to trust Prime Minister Viktor Orbán. Back in Budapest, one pro-Orbán media outlet crowed: “Our homeland won a battle.”
Briefly Noted:
On the margins of the UN General Assembly meetings, NATO Secretary General Jens Stoltenberg met with China’s foreign minister Wang Yi. Shortly before their grip-and-grin, the alliance chief described China and its policies as a “security challenge.”
With support from the Biden administration, the executive directors of the Inter-American Development Bank recommended the removal of the U.S. official serving as the institution’s president, who stands accused of allowing a romantic relationship to affect his official duties.
Controversy erupted this week over whether World Bank president David Malpass believes that human activity is producing climate change.
The UN-backed tribunal created to adjudicate Khmer Rouge atrocities in Cambodia has issued a final ruling.
Family members and activists submitted information to the International Criminal Court on the killing of noted Palestinian journalist Shireen Abu Akleh.
Judges at the International Court of Justice heard arguments by Iran and the United States in a case about frozen Iranian assets. Iran initiated the proceedings in 2016, and the ICJ in 2019 determined that it had jurisdiction to hear the case.
A new report from the International Peace Institute analyzes trends in multilateral activity around the world. “Rather than decreased international cooperation and widespread exit from multilateral institutions,” the authors conclude, “we are seeing a battle over the nature and purpose of the multilateral system—not decay, but transformation.”