The Controversy Around Chemical Warfare, Chemical Weapons and Their Prohibition

The Controversy Around Chemical Warfare, Chemical Weapons and Their Prohibition

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Author: PILPG

Introduction

Russia’s invasion of Ukraine has been testing the international legal norms on the use of force and conduct of warfare since day one, and the weaponry employed by Russia is no exception.

Reports have surfaced of three instances, in April, September, and October 2022, in which Russian forces may have deployed chemical munitions in Ukraine, prompting international concern. These Reports have suggested that tear gas may have actually been used. Tear gas is a “riot control agent,” prohibited “as a method of warfare,” and its use may well have been intended to make identification of any chemical agents deployed more difficult or pave the way for use of more lethal chemical agents (see the precedents of Syrian chemical attacks using mixtures of tear gas and nerve agents).  At the same time, state officials and analysts continue to warn of the threat of Russian chemical weapons attacks in Ukraine, either as a false flag attack or in response to the loss of territory in Ukraine. 

Moreover, in April 2022, the UK Ministry of Defense announced that Russia had used white phosphorus (“WP”) munitions in Ukraine’s Donetsk Oblast.  Ukrainian authorities have also accused Russia of deploying WP bombs in the suburbs of Kyiv and at other sites across Ukraine – though some suggest that other weapons with incendiary effects were actually used in these attacks.

This post examines how International Humanitarian Law (“IHL”) regulates the use of chemical weapons, including riot control agents like tear gas, and of WP munitions, and what may be done when the use of such weapons is alleged.

Chemical Weapons – Absolute Prohibition Under IHL

Chemical weapons, including choking, blistering, blood and/or nerve agents, like chlorine or mustard gas, arsine, and sarin, are a particularly gruesome tool of warfare, which cause indiscriminate death and suffering.

In international law, the 1925 Geneva Gas Protocol and the 1993 Chemical Weapons Convention (“CWC”) set forth a prohibition on chemical warfare. Russia and Ukraine are each Parties to both the 1925 Geneva Gas Protocol (see Ukraine; Russia) and the CWC (see Ukraine; Russia), and thus bound by these instruments. 

The prohibition on the use of chemical weapons, and of riot control agents as a method of warfare, is also considered to reflect customary international law (for chemical weapons; for riot control agents), applicable in both international and non-international armed conflicts.  The use of chemical weapons in both international and non-international armed conflicts is also arguably a war crime within the jurisdiction of the International Criminal Court (“ICC”), pursuant to Article 8(2)(b)(xvii) and 8(2)(e) of the Rome Statute.

The CWC imposes a ban on the use of chemical weapons (as defined in Article II CWC) ‘under any circumstances’, as well as on their development, production, acquisition, stockpiling, transfer, and retention. It also prohibits State Parties from using riot control agents as a method of warfare. The CWC further obliges State Parties to declare and destroy their chemical weapons stockpiles, and destroy or retire the facilities producing them.

Under the CWC, both Russia and Ukraine are subject to a complete ban on the development and use of chemical weapons under any circumstances, and against any targets – military or civilian.  Both states are also prohibited from using riot control agents like tear gas as a means of warfare.

White Phosphorus Munitions – What They Are And Are Not, And How IHL Treats Them

White phosphorus (“WP”) is a toxic, colorless, or whiteish-waxy material manufactured from phosphate rocks, which ignites on contact with oxygen, producing light, thick clouds of white smoke, and temperatures high enough to burn through metal. In military applications, WP is used to illuminate targets, or obscure personnel movement through smokescreens. When deployed as a weapon, WP causes horrific burns.

WP munitions do not squarely qualify either as chemical or incendiary weapons under applicable treaties, namely the 1925 Geneva Gas Protocol, the CWC and the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (see arguments for and against their treaty classification as either type of weaponry). 

First, WP munitions are not among the “asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices” covered by the 1925 Geneva Gas Protocol, since the prime purpose of WP is not to gas, asphyxiate, or poison, but to illuminate or obscure – while their harmful and weaponized side-effect is also not poisonous or asphyxiating, but incendiary.

Second,  WP munitions are not “chemical weapons” under Article II of the CWC, since they are not “specifically designed to cause death or other harm” by means of a “toxic chemical,” which causes “death, temporary incapacitation or permanent harm […] through its chemical action on life processes” (emphasis added). WP instead causes harm to humans through its thermal properties. Moreover, WP munitions are principally designed as obscurants and illuminants, and thus also fall under the carveout of Article II(9)(c) of the CWC on toxic chemicals used for purposes not prohibited under the CWC, namely “[m]ilitary purposes not connected with the use of chemical weapons and not dependent on the use of the toxic properties of chemicals as a method of warfare.”

Third, WP munitions are also not “incendiary weapons” under the Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (“Protocol III”) to the Convention on Certain Conventional Weapons (“CCW”) – both of which are binding on Russia and Ukraine (CCW: Ukraine; Russia;  Protocol III: Ukraine; Russia).  Article 1 of Protocol III defines incendiary weapons as “any weapon or munition which is primarily designed to set fire to objects or to cause burn injury to persons,” while Article 1(b)(i) clarifies that “[i]ncendiary weapons do not include: (i) [m]unitions which may have incidental incendiary effects, such as illuminants, tracers, smoke or signalling systems” (emphases added).

WP munitions escape classification and regulation under Protocol III because they are “primarily designed” as illuminants and smokescreens, and ‘only’ have incidental (though devastating) incendiary effects. States and NGOs have stressed the need to amend Protocol IIIto cover WP.

WP munitions are also, arguably, not expressly prohibited by customary international law as a category of weapons.

However, despite the fact that IHL does not outright prohibit WP weapons, every use of such weapons may and should be examined for its legality.  Like any other weapon, the use of WP munitions is regulated by the conventional (see Protocol I to the Geneva Conventions) and customary IHL rules, which include the principle of distinction between military objectives and civilian objects and the prohibition of targeting the latter; the prohibition of indiscriminate attacks; the prohibition of area bombardments; the requirement to take all feasible precautions in an attack to avoid and minimize incidental harm to civilians; the principle of proportionality; the prohibition of weapons indiscriminate by nature; and the prohibition of weapons of a nature to cause superfluous injury or unnecessary suffering, even against military targets.

The legality of each instance of use of WP munitions must be assessed against these fundamental principles and rules, and their breach could give rise to international responsibility for Russia, and/or criminal responsibility for war crimes by the individuals carrying out, ordering, or not preventing uses of WP munitions in contravention of the above IHL principles. Indeed, the targeting of civilians or the lodging of indiscriminate attacks and area bombardments with WP munitions could qualify as a war crime under Article 8(2)(b)(i),(ii), or (v) of the Rome Statute.

Potential Responses Under International Law To Use Of Chemical And WP Weapons By Russia In Ukraine

Responses to the alleged illegal use of chemical weapons, riot control agents, and/ or WP munitions by Russia in Ukraine could in principle seek to establish either the international responsibility of Russia as a state, or the individual criminal liability of those involved in deploying such weapons.

First, the international responsibility of Russia as a state for the illegal use of chemical weapons, riot control agents, and/ or WP munitions is unlikely to be brought before the international fora. Neither Russia nor Ukraine has accepted the compulsory jurisdiction of the International Court of Justice (“ICJ”), and thus no contentious dispute concerning possible violations of the CWC, the Geneva Conventions, their Protocols, or customary IHL norms could be brought before the ICJ through that avenue. While the CWC foresees the referral of disputes over its application to the ICJ, this would again require a special agreement between Russia and Ukraine to submit such a dispute to the Court. However, it may be possible to bring allegations of Russia’s illegal use of such weaponry before the ICJ, through a request by the UN General Assembly for an advisory opinion concerning the legality of Russia’s conduct in Ukraine.

The international responses to Syria’s use of chemical weapons may be examined as a potential precedent to apply to the situation in Ukraine.  Following the Assad regime’s 2013 horrific Ghouta attacks, western powers considered a military intervention in Syria, but this was averted through a US-Russia brokered diplomatic solution (the Joint Framework for the Elimination of Syrian Chemical Weapons), which led to Syria joining the CWC and to UN Security Council resolutions outlining Syria’s obligations to declare and destroy its chemical weapons stockpile under the oversight of joint task forces of the UN and the Organisation for the Prohibition of Chemical Weapons (“OPCW”). Syria’s stockpile declarations were seemingly incomplete and the process failed to prevent further chemical attacks, to which the US, UK, and France responded with missile strikes in 2018, reportedly aimed at sites linked to Syria’s chemical weapons program (the legal justification of which under international law has been called into question).

While announcements of “appropriate responses” to a Russian chemical attack have been made, western attacks against Russia akin to those against Syria in 2018 are unlikely.  Moreover, UN Security Council action to address allegations of chemical weapons use by Russia would be ineffective in view of Russia’s veto powers.  Also, it seems that the main steps taken toward Syria in relation to the CWC could not be taken towards Russia, which is already a CWC signatory, and has seemingly destroyed its declared chemical weapons stockpile (as verified by the OPCW in September 2017) – although it has since been accused of non-compliance, through incomplete declarations of its chemical weapons stockpile, and use of the ‘Novichok’ nerve agent in 2018 and 2020.

What could perhaps be employed to prevent a potential chemical weapons attack is the CWC’s verification apparatus. The CWC foresees procedures for State Parties to address doubts about another Party’s compliance with the Convention, including consultations, fact-finding, and the possibility to request a “challenge inspection” of another State Party’s facilities by the OPCW’s Technical Secretariat. Assuming sufficient information about Russian facilities suspected of manufacturing or storing undeclared chemical weapons stockpiles, Ukraine (or any other State Party to the CWC) could request a challenge inspection of said facilities, to locate any such stockpiles and ensure their supervised destruction. Moreover, OPCW inspections of Ukrainian facilities could be requested, to debunk potential false-flag allegations that Ukraine may have chemical weapons as a pretext for Russia to then use such weapons itself.

Second, deployment of chemical weapons, riot control agents and/or WP munitions in Ukraine and in contravention of IHL could give rise to the individual criminal liability of those involved, who could be prosecuted for war crimes before international or domestic fora.

The ICC is the international forum with jurisdiction over war crimes (among other crimes) and  can hold individuals accountable for these crimes and impose penalties, including imprisonment, fines, and forfeiture. The ICC is meant as a court of last resort, operating complementarily to domestic prosecutions. While neither Ukraine nor Russia is a State Party to the Rome Statute, Ukraine has submitted declarations accepting the ICC’s jurisdiction over alleged crimes under the Rome Statute occurring on Ukrainian territory. After a preliminary investigation of Russia’s conduct in Ukraine since 2014, and following the referral by more than 40 states of the current situation in Ukraine to the ICC, investigations, including for war crimes, were officially opened by the Prosecutor on 2 March 2022, and are carried out across Ukraine in cooperation with Ukrainian authorities to document allegations of international crimes for accountability proceedings.

Domestic prosecutions for war crimes are also possible, as long as a state has substantive criminal law provisions covering these crimes, and jurisdiction over them. In the present case, prosecutions could in principle occur before Ukrainian courts (which have territorial jurisdiction), Russian courts (which have nationality jurisdiction over the conduct of Russian nationals in Ukraine), or even before the courts of third states (through the application of universal jurisdiction).

Conclusions

While the international law prohibiting or considerably restricting the use of certain weaponry that Russia has been accused of deploying is generally clear, the avenues available to prosecute such complaints at the international level are less so. With discussions ongoing over the viability of establishing novel international or domestic fora to ensure accountability for Russian conduct in Ukraine, including for war crimes, until these new fora may be established the exploration of legal avenues already available to address Russian unlawful use of weaponry in Ukraine may be beneficial.

Ukraine on the way to the European Union – German foreign policy perspective

Ukraine on the Way to the European Union – German foreign policy perspective

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Authors: Zorica Maric Djordjevic, Senior Peace Fellow, Public International Law & Policy Group, and Dr. Lina H. Alami and Marvin Noussayaba Ambi Aideyan, attorneys from Orrick, Herrington & Sutcliffe LLP

The European Union (EU) is one of today’s most progressive political and economic institutions. Created as a peace project after World War II, it evolved into the monetary union in 1993 (The Treaty of Maastricht) and advanced political and institutional integration in 2009 (Treaty on the Functioning of the European Union – TFEU). EU currently consists of 27 member states, implying over 447 million inhabitants. The EU is seen as a cornerstone of European stability and prosperity, and the creation of the EU itself has been a revolutionary act never encountered before, creating the conditions for the longest period of peace the continent has ever experienced.

Enlargement has been one of the most powerful means of the European Union’s policy. The enlargement policy serves the strategic interests of the EU as it is intended to promote stability, peace, security, and conflict prevention. Moreover, this strategic policy further promotes the fundamental postulate of creating the EU in general. There are seven recognized candidates for membership of the EU: Turkey (applied in 1987), North Macedonia (2004), Montenegro (2008), Albania (2009), Serbia (2009), Ukraine (2022), and Moldova (2022).

The institutional ties between Ukraine and the EU began back in 2009 with the establishment of the Eastern Partnership Program – a framework for collaboration between the EU and its eastern neighbors Ukraine, Georgia, Moldova, Armenia, Azerbaijan, and Belarus. As a result, an Association Agreement and Deep Comprehensive Free Trade Area Agreement (DCFTA) were initiated with Ukraine, Georgia, and Moldova in 2014. The agreements establish a pathway for significant reforms in the EU partner states that aim to bring the states close to EU standards and legislative norms. Since then, the EU and Ukraine have been steadily moving towards closer and more integrated cooperation on political, social, security and defense, and economic matters. A significant move to establishing a closer relationship between the EU and Ukraine was in 2017 with the visa liberalization scheme.

On 28 February 2022, President Zelenskyy signed an official request for Ukraine to join the EU, which was subsequently presented to the Presidency of the Council of the EU. The EU has been receptive to the move with Ursula von der Leyen, acting President of the European Commission, declaring that “Ukraine is one of us and we want them in the European Union.” On 1 March 2022, an overwhelming majority of 637 of 676 members of the European Parliament (MEPs) present voted in favour of granting an EU candidate status to Ukraine in line with Article 49 of the Treaty of the European Union.

These highly relevant movements on such a fundamental question give rise to once again considering the pros and cons arguments around Ukraine’s accession to the EU. In particular, this blog post will focus on how the contra arguments should not bar Ukraine’s eventual accession to the European Union.

Argument No. 1: Due to its history, Ukraine belongs to the Russian Federation rather than the European territory. Together with Belarus, Ukraine belonged to the former territory of “Kievan Rus”

Any European state may apply for membership. The characteristic “European” is not only to be understood geographically as the Association Agreement between EU and Ukraine notes: „TAKING ACCOUNT of the close historical relationship and progressively closer links between the Parties as well as their desire to strengthen and widen relations in an ambitious and innovative way; […] RECOGNISING that Ukraine as a European country shares a common history and common values with the Member States of the European Union (EU) and is committed to promoting those values; NOTING the importance Ukraine attaches to its European identity; […] CONFIRMING that the European Union acknowledges the European aspirations of Ukraine and welcomes its European choice, including its commitment to building a deep and sustainable democracy and a market economy;“. These are clear indications that both the EU and Ukraine assume that Ukraine has a strong European history and identity.  Moreover, the term “European state” in Article 49 TEU coincides with the designation of Ukraine as a “European state” in the preamble to the Association Agreement and Article 2 TEU defines the values of the EU that member states must possess, which are based on respect to human dignity, freedom, democracy, equality, rule of law, and human rights that characterize a territory as European. 

Situated between Central Europe, Russia, and the Middle East, Ukraine was shaped by the empires that used it as a strategic gateway between East and West—from the Roman and Ottoman empires to the Third Reich and the Soviet Union. For centuries, Ukraine has been a place for meeting various cultures. As such, Ukraine’s history is inherently linked to that of Europe and, since the early 2000s, Ukraine has been on a steady path to closer integration into the European Union. The voting patterns of the Ukrainian population and the opinion polls conducted in Ukraine demonstrate the long-standing pro-European orientation sentiment in Ukraine, which is further emphasized by the 2013/2014 Euromaidan protests whereby large numbers of the Ukrainian population expressed support for the conclusion of the Association Agreement with the European Union.

Moreover, Ukraine already has a deep cooperative relationship with the EU as part of the Eastern Partnership. This further confirms the inherently European-leaning perspective among Ukrainians, which explicitly rejected their association with Russia in 2014.

What is more important, the Copenhagen criteria that set out the conditions for becoming an EU member state do not discriminate against states based on their “belonging to a certain territory,” but rather, require certain qualitative criteria to be fulfilled to join the Union. These criteria relate to a state’s political and economic commitments. In fact, the Copenhagen criteria explicitly mention the European Council is interested in expanding cooperation with Ukraine and Eastern and Central European states, as well as its observance of these states being deserving of becoming members of the Union once they fulfill the political and economic conditions.

Argument No. 2. The EU is currently already overburdened with the pending Western Balkan enlargements.

Each candidate country must be considered individually and according to objective criteria. All candidate countries need to negotiate 35 accession Chapters related to different policy fields to bring their legislation in line with the EU acquis – the accumulated legislation, legal acts, and court decisions that form the body of the law governing the 27-member states. The only decisive factor is whether Ukraine meets the accession requirements set out in Art. 49 TEU, observes the values and constitutional principles set out in Art. 2 TEU, and fulfills the Copenhagen criteria. These are:

• “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;

• a functioning market economy and the ability to cope with competitive pressure and market forces within the EU;

• the ability to take on the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law (the ‘ acquis ’), and adherence to the aims of political, economic and monetary union.”

Hurdles of other states during the respective accession procedures must not be considered to Ukraine’s disadvantage. Fair treatment is required by the democratic principle of equal treatment and, as such, Ukraine’s possible accession should be measured against the criteria above rather than against accession progress achieved by Western Balkan states.

In fact, the Association Agreement between Ukraine and the European Union is designed withmore comprehensive provisions in terms of scope of commitments than the Stabilization and Association Agreements with the Western Balkan states, which already moves it closer to achieving the Copenhagen criteria.

Argument No. 3. Ukraine is an unstable democracy that has problems with the rule of law, corruption, and dealing with minorities.

While corruption problems in Ukraine persist, the situation has substantially improved in recent years, with the adoption of almost 127 anti-corruption acts and the creation of or a number law enforcement agencies (the National Anti-Corruption Bureau, the High Anti-Corruption Court, the National Agency on Corruption Prevention, the Asset Recovery and Management Agency, and the Specialized Anti-Corruption Prosecutor’s Office), focusing only on corruption. From 2019 to 2021, a total of 381 charges of high-level corruption were filed and in 57 cases, the defendants were found guilty. In addition, a Unified State Register of Declarations for individuals was implemented to increase the transparency of asset declarations by politicians and civil servants in 2017 and prevent corruption in this area. In addition, Ukraine has been instituted judicial reform since 2017, establishing an open selection process to appoint 120 judges to the new Supreme Court.

Shortly before and during the Russian invasion, Ukraine made further steps at fighting corruption by signing the so-called “de-oligarchization” law, which took effect in 2022. The law aims to impose restrictions on oligarchs in Ukraine to impose their financial interests and political agenda. Similar measures are being taken in the area of antitrust law to limit the operations of oligarch-controlled monopolies.

Perhaps to most critical and response to potential EU concerns, Ukraine confirmed the experienced investigator Oleksandr Klymenko as the head of its Specialised Anti-Corruption Prosecutor’s Office in July 2022, responding to a European Union request as it seeks EU membership. These successful reforms should be acknowledged accordingly. Thus, an EU accession process would be a strong incentive to push for further pro-European reforms.

Argument No. 4. Preferential, accelerated EU accession of Ukraine – despite the democratic deficits – would upset other accession candidates

The accession procedure for EU membership is standardized and applies equally to each candidate country. The historical, political, and economic arguments in favor of enlargement are still compelling. This is particularly so in the case of those states that are in the process of accession negotiations.

There is no “preferred fast-track” or “shortcut” procedure. Ukraine merely expects that the standard procedure – where possible – will be passed quickly, free of delays as in the case of the accession candidates – North Macedonia and Albania. Ukraine affirms its commitment to go through the steps and measures required for its accession in a timely manner and requests the same on the part of the EU, so that its accession procedure does not encounter delays as have been the experience with other candidate states. For example, Ukraine completed the European Commission’s questionnaire necessary to advance the accession procedure within a month, whereas other accession candidates needed several months or even a year.

Moreover, the accession process for Ukraine has already been advancing for several years (since 2014), during which it has concluded and effectively fulfilled its obligations under the Association Agreement with the EU, demonstrating its measurable progress and commitment to EU accession. At the same time,Albania and Northern Macedonia initiated accession negotiations with the EU in July 2022, after the vote by the MEPs in the European Parliament, which allows them to argue that the situation in Ukraine has not hindered the progress of other accession processes.

Argument No. 5. Ukraine’s accession would be a major financial burden for the EU. The EU and the member states are already providing reconstruction assistance.

Ukraine’s accession would not be a burden on the EU, but rather, offers a promising economic potential. With adequate investments in infrastructure, especially to mitigate the destruction from Russia’s war, Ukraine could greatly contribute to the economic development and stability of Europe, especially Eastern Europe. Ukraine, for example, has rich oil and gas reserves (2019 gas reserves estimated at 1.09 trillion cubic meters), surpassed in Europe only by those of Norway (1.53 trillion cubic meters of gas). These oil and gas reserves could support the EU’s aspiration for energy independence, particularly from Russia and the Gulf states. In addition, Ukraine, similarly to the EU and other developed states, has committed to sustainable energy goals with realistic opportunities for achieving them, including because of its large-scale hydrogen production opportunities. Furthermore, Ukraine has developed one of the strongest IT sectors in the world. In 2021, before Russia’s invasion, Ukraine had an estimated 289,000 IT professionals, one of the highest stocks of software developers in Europe, particularly in the IT outsourcing service sector. According to the Tech Ukraine 2021 report, the country performed an estimated $7 billion worth of IT services in the year before the invasion. Regarding agriculture, Ukraine is one of the largest exporters of agricultural products, with a cultivated area of about 32 million hectares per year (equivalent to 24 % of the EU’s total arable land). In 2021, Ukraine exported about 48 million tons of cereals and oilseeds, making it the third or fourth-largest exporter of crops and by far the world’s largest exporter of sunflower and sunflower oil.

Moreover, research by the European Commission has concluded that Ukraine has a strong macroeconomic record, which continued even during the Russian invasion.

Overall Ukraine has presented resilience, financial stability, and well-functioning institutions that have been able to continue operations despite the ongoing war.  Nonetheless, there is room for improvement, particularly on structural reforms to remove corruption, reduce the state and oligarchical footprint, strengthen private property rights, and enhance labor market flexibility, that Ukraine is actively working on and that would require post-war investments in Ukraine.

Lastly, Ukraine is already one of the EU’s most important trading partners. Just by establishing a free trade zone, Ukraine’s agricultural production would grow by 42.8 %. If import tariffs were lowered, exports of grain, meat and other food products would increase by 20 %. Ukraine’s EU accession thus may simultaneously strengthen the EU’s economic power, for example, by strengthening the EU as a geostrategic agricultural and supply actor. With EU enlargement, the global EU export share for wheat exports would be 30 % due to Ukraine’s noteworthy role as a global wheat exporter as has been highly emphasized during Russia’s war in Ukraine.

Argument No. 6. The Ukrainian population is divided on the issue of their country’s accession to the EU. For many years, accession was only approved by about half of the population.

The Ukrainian population is united behind EU membership. At the beginning of March 2022, 86 % and at the end of March 91 % of Ukrainians supported EU accession. This also applies to the traditionally more pro-Russian regions which voted in favor of eastern Ukraine, where around 75 % expressed their approval of a possible accession.

Argument No. 7. Politically, an accession debate is not opportune at the moment, if one does not want to provoke Russia to even worse aggressions in the current war.

Rather than increasing instability and security threats in Europe, Ukraine’s accession to the EU would function as a deterrent for further aggression by Russia. Russia’s successive invasions of Georgia in 2008 and the Crimean Peninsula in 2014, followed by the destructive war against Ukraine in 2022, demonstrate that the strategic rationale of “not provoking Russia” has not worked to deter Russia, but rather, has only encouraged Putin to continue his aggressive acts.

Argument No. 8. Realistically, it would inevitably take many years – too many years – before Ukraine is actually admitted to the EU as it passes through the accession stages.

Other member states that have successfully joined the EU in the last 20 years have also taken several years to complete the accession process. For example, the negotiations with Poland, the Czech Republic, Hungary, Slovenia, Estonia, and Cyprus lasted from 1998 to 2003, (the negotiations with Slovakia, Latvia, Lithuania, and Malta lasted from 2000 to 2003; with Romania and Bulgaria from 2000 to 2005; and those with Croatia from 2005 to 2011).  As such, the duration of the accession procedure would merely be a standard process for such negotiations.

Argument No. 9. The admission of Ukraine to the EU would be an additional security threat. The EU would gain another difficult external border with Belarus and would move directly closer to Russia.

Ukraine has one of the strongest armies on the European continent and already possesses close military ties with its allies in the EU and the US. In fact, despite the expectation in Russia, and possibly among some other international actors, Ukraine was able to successfully stop Russia’s invasion of all of Ukraine’s territory and push it back to the Eastern territories where it is frequently gaining success. Before the 2022 invasion, Ukraine has consistently contributed to EU operations and missions, participated in EU Battlegroups, and applied for four PESCO (Permanent Structured Cooperation) projects.

Additionally, a Framework Participation Agreement already governs Ukraine’s involvement in the Common Security and Defence Policy (CSDP) operations, in which Ukraine has participated since the early 2000s. Since 2015, an administrative arrangement with the European Defence Agency (EDA) has governed bilateral relations and offered Kyiv the opportunity to participate in its military-technical projects and programs. In October 2021, EU member states recognized Ukraine’s desire to participate in Permanent Structured Cooperation (SSC) projects. Looking forward to the eventual demobilization of Ukraine after Russia’s invasion, through EU accession for Ukraine, the EU would be able to monitor the demobilization of armed groups in Ukraine, hence mitigating any risk of unrest within Ukraine that could have a spillover effect to the European Union.

Argument No. 10. After the tensions and conflicts between Cyprus and Turkey, the EU does not want to admit another state with unresolved border conflicts and thus bring another source of conflict into the alliance.

Several border disputes within the EU still need to be solved. Cyprus is not the only one. The EU has already dealt with border disputes between other members, even when both are already within the EU, specifically, Slovenia and Croatia. As the border between them had not been determined in detail before independence, several parts of the border were disputed, both on land and at sea, namely in the Gulf of Piran. Only in 2017, the Permanent Court of Arbitration settled the dispute between both states – 4 years after Croatia joined the EU and 13 years after Slovenia.  Following Brexit, the border between Northern Ireland and the Republic of Ireland became an external EU border. EU and United Kingdom negotiated The Northern Ireland Protocol, which has been a source of tension since it came into force at the start of 2021. Technical negotiations between the UK and the EU restarted in October. EU agreed that protecting the Northern Ireland peace deal – the Good Friday Agreement- was an absolute priority.

Admittedly, the import of a new border conflict is of great importance. However, it might have had a longer and more devastating impact if the EU continued to expose Ukraine to prolonged Russian aggression, which could continue to harm the political and economic stability on the European continent and within the EU. In fact, such outcome could incidentally fuel disagreement among existing EU member states as many of the states in the East, including Poland and the Baltic States that have long called for Ukraine’s accession to the EU.

Photo by Maheshkumar Painam on Unsplash

A New Chance for Europe?

Author: Dr. Igor Lukšić, Former Prime Minister of Montenegro, PILPG Senior Peace Fellow

​​Always On the Run
As the consequences of the war in Ukraine continue to be revealed, Europe finds itself grappling with a cluster of crises. Soaring electricity, gas and oil prices, as a consequence of economic sanctions on Russia, was the most evident early consequence of the war. Elsewhere the impact of the weaponization of food and fertilizers has been tremendous. This energy crisis compounds with already rising inflation, a lingering consequence of pandemic efforts to inject money into domestic economies and keep sinking economies afloat. As the war drags on, state security and foreign policy, especially that of the European states, continues to be tested. This insecurity has reignited an ongoing debate about the future of the European Union (EU), a debate that predates the Russian-Ukrainian war but is heavily linked to the long-established preference of Ukraine to have close ties to the EU. As a result of this debate, there have been various calls for reforms in order for the European Union to become more resilient, more competitive, and more globally relevant.

In this piece, however, I would like to focus on the future of the European Union as it relates to the relationship between its neighbors. The policy of enlargement, frequently dubbed as the EU’s most successful policy, has become stagnant. There are a number of countries, referred to as candidate countries, many of which in the Western Balkans, that aspire to become full-fledged member states but have yet to be accepted. The EU, however, has not expanded in almost 10 years since Croatia joined as a member state in 2013. The EU must embark on new methods of integration with urgency and must prioritize discussions surrounding EU enlargement policy. Though the EU’s strength and security has been challenged within recent years, steps have already been taken to strengthen Europe’s development and security, such as French President Emmanuel Macron’s initiative for a new European political community, a political community with hopes of facilitating more efficient coordination and integration between European states.

In my view the Ukrainian war is the most obvious symptom of the various challenges that the EU faces in the political domain, but other challenges such as structural socio-economic issues, and the overwhelming crisis of climate change, require refreshed approaches by the EU. From, for example, speeding up the green transition, to doing more when it comes to the political consolidation of the EU with Western Balkans countries; these refreshed approaches will take courage, vision, and strong leadership.  

A New Vision 

Regional cooperation in the Balkans was given a new boost with the WB6 framework which I had the pleasure of initiating in the form of a non-paper in 2013 and later shaped with colleagues from the region and the European Commission in 2013 and 2014. The WB6 framework’s goal was to solidify regional cooperation in the Western Balkans in the areas of rule of law, infrastructure development, and trade facilitation, with the aim of improving each individual country's preparations for their eventual EU accession. The framework contributed to existing wider coordination platforms such as the Process of Cooperation in South East Europe. The WB6 framework also became the integral component of the Berlin Process in 2014, a process which aimed to improve cooperation between the EU and Western Balkans potential candidate states. Some strides have been made due to the WB6 Initiative and Berlin Process but momentum towards EU membership of these states have largely faltered, despite new agreements signed in late 2022. The enthusiasm and optimism that existed ten years ago feels all but evaporated.

Therefore, I firmly believe it is time for change, particularly as it relates to EU membership. It is my recommendation that the EU restructures its membership policy and includes a new category of associate members. The EU should grant associate member status to qualified applicant states by January 2027 and should specify the necessary regulatory tasks that need to be completed by the applicant states well before. Such a membership formula would, for example, enable Western Balkans countries to participate fully in the work of the European Parliament and add around 50 Members of the European Parliament (MEP’s). These new associate member states would be able to take part in most steps of the legislative process as full-fledged members, but for the time being would not be able to nominate commissioners or block European Council decisions. The ability for associate members to take part in the legislative process but not in the final decision making would give additional time to the EU to implement the necessary internal reforms without slowing down the enlargement process.

The associate member states would have to adhere entirely to the security and foreign policy of the EU, helping pacify some of the existing political tensions. The new associate members would not be able to join the Schengen system until all the requirements are met, but would be required to install free movement of people, goods, services and capital like elsewhere in the European common market (which is the current case for countries like Romania and Bulgaria). This would reduce even the most acute, although politically relevant problems in the region, to a mere squabble.

By becoming associate members and gaining full access to the EU development funds, the Western Balkans countries could finally break their own obstacles to economic development too. The region is inhabited by approximately 17.5 million people, similar to the population of Romania of around 19 million people. According to the current EU policy, the candidate countries of the region (including Turkey) are entitled to about $12-14 billion euros of the pre-accession support instrument. According to the World Bank’s data book, the 2001 GDP per capita in Romania, a EU member state since 2007, was roughly the same as in Montenegro, Serbia, and North Macedonia, although considerably higher than in Albania and Bosnia and Herzegovina due to previous conflict in these countries. In 2001, the GDP per capita in Romania was $1,800 USD and the GDP per capita average for the WB5 was $1,600 USD. However, in 2021, the Romanian GDP per capita was $15,000 whereas the WB6 average was about $7,500, a drastic loss of economic power for the Western Balkans countries, especially if one takes into account that the large gap exists between Romania and countries that two decades ago were at nearly the same level. In 2023, the Western Balkans countries are small and the regional market remains weak.

On the other hand, Romania has been an EU member state for 15 years, enjoying numerous benefits such as a net $4 billion euros in economic assistance in 2021. Romania could receive $30 billion euros of net inflows from the EU 2021-2027 budget framework and previously received about $40 billion euros of net inflows from the 2014-2020 budget framework. It is thus reasonable to expect that the Western Balkans countries, if associate members, would benefit similar amounts in economic assistance given the wider gap with the average EU GDP per capita. What a boost it could be! Meanwhile, the EU would need to ensure that during this time critical reforms are executed in line with the rule of law mechanism in order to pursue lasting economic development, security, and integration for Europe and its states.

Such a formula could also be used for other countries that are unable to continue the EU enlargement process because of disputed territories.

Don’t forget about climate change!

 A new and courageous approach to the consolidation of the EU would not only promote economic and political security, but would also be important in ensuring climate change resilience in the Western Balkans. The more resilient the Western Balkans is to climate change, the more resilient the EU can be.

Historically, technological change has been more or less a spontaneous matter. It was a gradual process in which economic and technological developments overlapped without a pre-determined or clear course. However, the decarbonization agenda, or the UN Sustainable Development Goals of 2030, has imposed a cap on greenhouse gas emissions, meaning that for the first time ever a common direction of economic, social and technological change has been imposed globally. Although legitimate from the planet’s inhabitability point of view, we do not know the unintended consequences of such a course and whether the international community will be able to successfully maneuver the colliding economic, social, and technological change. 

For all the reasons mentioned above, and others not elaborated here, this new approach is a needed long-term investment. Tough times require out of the box approaches and solutions, and expanding the EU membership policy to include associate states is one such needed approach.

ASP21 Side Event: To Catch a Dictator: the Pursuit and Trial of Hissène Habré

21st SESSION OF THE ASSEMBLY OF STATES PARTIES

9 December 2022

Name of the Event: To Catch a Dictator: the Pursuit and Trial of Hissène Habré 

Report by: Kelly van Eeten, Senior Research Associate PILPG-NL

Highlights: 

• Mr. Brody launched the book named To Catch a Dictator: The Pursuit and Trial of Hissène Habré. The book is an insider’s account of how an international team of investigators, legal experts and victims worked together to bring to trial a dictator who terrorized, tortured and killed on a horrific scale over his eight years in power. 

• The role of the victims was central in the Habré trial and the panelists urge that in other trials the victims should be given a more prominent role as well. 

Speakers: 

• Reed Brody 

• Janet Anderson 

• Stephen Rapp 

Summary of the Event: 

The Belgian ambassador started by reading a section of the book, summarizing the timeline of the Habré trial. Hissène Habré was the president of Chad from 1982 until 1990. In 2016, the EAC filed its verdict, sentencing Habré to life imprisonment. Habré died four years ago due to covid infection. The panelist pointed specific attention to the analysis of admissability which was very crucial in this case since the court recognized the right of any state under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment could call on another party to the convention when they did not prosecute or extradite a person on its territory. 

Next, Reed Brody signaled out his friends Souleymane Gengen and Jacqueline Moudeïna who played a crucial role in the case. Jacqueline barely survived a grenade attack but never stopped to fight for justice. Brody also mentioned the important role of the women who broke their silence to testify in court that they were raped in prison or victims of sexual slavery in Habré’s camps. 

Brody and his team spent sixteen years putting the case against Habré together and collected more than 100 victim statements, documents on murder and torture with Habré’s own handwriting on it, and lists of people who died in detention. He also signaled a weak point of the case, namely Habré’s refusal to participate in the proceedings. 

An important line of work, in this case, was advocacy and politics. The team worked to build political support over the years. At one point, you knock at the right door, and finding justice becomes a lot easier. 

Janet Anderson pointed out that Reed was often critical of the ICC as an institution, giving him the nickname ‘Reed anything but the ICC’. Reed pointed out in response that they could not do their work without the ICC since the ICC is the expression of an international commitment against impunity. The Rome Statute has been incorporated into many national laws. However, he noted that the ICC should focus more on the involvement of victims in their cases. 

In Habré’s trial, the voices of the victims were central since they were part of the team. The inhabitants of Chad saw their past dictator being at trial, not because their new ruler wanted him there, but because the victims of his crimes got him there. This makes an entirely different account of justice. 

The panel was also asked about the current case in Ukraine. Brody was content with the international response to Ukraine but advocated for the same response to other conflicts and countries. The panelists delved deeper into the options for a special tribunal for the crime of aggression in the case of Ukraine. The panel emphasized that we should prosecute this case of aggression and make a commitment to prosecute every case of aggression in the future as well. This case should be done in a way that strengthens every future case about aggression. 

The case of Gambia was also discussed by the panel, with specific attention to the Truth Commission that was set up there, where the victims could watch the Commission. 

One of the questions from the audience focused on the expectations of victims and how to support them in the justice process. A member of the audience asked what Brody would recommend to people supporting victims in other parts of the world who are at the beginning of their process of seeking justice. 

Brody recommended watching footage of trials on other cases with the victims to give them an idea of how the proceedings will take place. Furthermore, he stressed the importance of having open conversations with the victims on how long the case might take and if they are willing to spend so many years working on it. 

The panel closed with a statement from Stephen Rapp on the book. 

Rapp noted that what we see in this book is how international justice can work even in places where there are no court or justice options available. It provides the essential ingredients for bringing a dictator to justice, with a key point being the need for a team that gets up every day and figures out what needs to be done to move the case forward. Another relevant point is the need for documentation, especially linkage documentation. These crimes are not organic, they happen because someone makes them happen. It is crucial to find evidence that links the higher-level perpetrator to the crimes.

ASP21 Side Event: Shocking the Conscience of Humanity: From Gravity Theory to Practice

21st SESSION OF THE ASSEMBLY OF STATES PARTIES

5 December 2022

Name of the Event: Shocking the Conscience of Humanity: From Gravity Theory to Practice (Book Launch for Judge Professor Margaret deGuzman Co-hosted by The Gambia and PILPG). 

Report by: Paul Weber, Henry Smith, and Emma Bakkum

Speakers:

• Professor Milena Sterio, Managing Director, PILPG and The Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law, Cleveland State University College of Law  

• Margaret deGuzman, Judge, International Residual Mechanism for Criminal Tribunals and James E. Beasley Professor of Law, Temple University Beasley School of Law 

• Dr. Marieke de Hoon, Senior Counsel, PILPG and Assistant Professor, Faculty of Law, University of Amsterdam

• Dr. Rod Rastan, Officer of the Prosecutor, International Criminal Court

• Marie O’Leary, Counsel/Legal Adviser, Office of Public Counsel for the Defence, International Criminal Court

Summary of the Event: 

PILPG and The Gambia co-hosted a side event on the first day of the 21st ASP to launch Judge Professor Margaret deGuzman’s recently published book “Shocking the Conscience of Humanity: From Gravity Theory to Practice”. 

Judge Professor Margaret deGuzman introduced her newly published book by outlining and framing the main themes. DeGuzman first explained the book’s descriptive claims, which center around the concept of gravity and its use to justify decisions in international criminal law. The ambiguity of the concept of gravity has been constructive to international criminal law. For instance, it helped create the International Criminal Court (ICC) - the aim of providing justice for the ‘gravest’ crimes, without defining what exactly gravity meant, brought states together. However, the undertheorized agreement is becoming more destructive of the ICC’s authority. DeGuzman described the current need to build the international justice community, and how not giving meaning to the concept of gravity delegitimizes these efforts. Opponents of the community find it easy to undermine these efforts by questioning the legitimacy of a system based on a term that is left largely undefined. 

The book’s prescriptive claims center around ideas on how we might give additional meaning to the concept of gravity in a way that may be constructive to the ICC’s regime. DeGuzman argues there should be further exploration of the actual goals of affected communities and the underlying values that underpin the gravity criteria. DeGuzman’s book shows that the concept of gravity does not necessarily have to play the central role that it currently does. It’s not integral that it should be about the “most serious crimes of concern to humanity”, however, historically, gravity has become a central concept to international criminal law. 

DeGuzman then framed several themes and concepts as covered in her book: 

• The concept of legitimacy, which is also an undertheorized term. It regards both legal and moral authority, and should not be considered as a strict threshold: either there is legitimacy or not. Rather, legitimacy should be used as a scale. 

• The concept of gravity, which is defined as the idea that certain crimes are so horrible that they deserve to be investigated and prosecuted. These crimes of gravity are sometimes absolute or relative, also considered as a threshold or even in a comparative manner. These uses of the gravity concept are sometimes conflated in ways that undermine the legitimacy of international criminal law.

• Framing: while there is a global community that justifies the existence of international criminal law, it is a thin community that only agrees on a small set of norms. Thus, part of the work of global organizations is to build that community by making decisions that reflect the ideas of the community and then articulating them through dialogues. Dialogue must be created to build common ground, and, for instance, the Assembly of States Parties is an essential platform for such dialogues.

Turning to adjudicative authority first, deGuzman used the Office of the Prosecutor’s (OTP) practice as an example. While the OTP has faced criticism, she noted that the OTP has moved in the right direction, particularly regarding case selection. According to deGuzman, the OTP has historically done well in relying on gravity to select cases for prosecution. Concretely, the OTP relied on specific norms, like the ban on child soldiers and Sexual and Gender-Based Violence, to underline the global interest in justice for violations. However, with regard to the selection of situations, the OTP for a long time took the view that it did not have any discretion. This led to some decision related to gravity that did not support the legitimacy of the institution ultimately. DeGuzman argues that the gravity threshold in Article 16 of the Rome Statute should therefore be minimal, but decisions to investigate situations should include explicit explanations of a compelling global interest and argumentation on why it outweighs national and regional interests. In this vein, the question of how to balance the global and national interest in order to promote legitimacy is a difficult one.

Continuing on adjudicative authority, Dr. Rod Rastan underlined the struggle for any prosecution related to giving effect to an explanation or criteria when decisions apply to a relatively small number of cases, with disparity between those cases. Criteria might be guiding, but there is an endpoint to explaining every aspect of a decision. It is a continuous process to identify what discretion is. Dr. Rastan expressed specific appreciation for the focus on dialogue in deGuzman’s book. DeGuzman’s book solicits engagement and input in trying to identify the rationale for decision making.

Dr. Marieke de Hoon then spoke from the perspective of those most affected. She particularly appreciated the concept of building a thin global justice community. While it is a very slow process to build international consensus, the international community will be going in a particular direction. For instance, the Al-Mahdi case is an example of the processes described in deGuzman’s book; a rationale for punishment regardless of the number of victims. Dr. de Hoon continued by noting that justice should be for the affected communities, referring to the struggle of the ICC to translate its decision making and explanations to the specific needs of affected communities. For instance, the need to make clear what the OTP is doing and why. She referred to the MH17 case in the Netherlands as an example. Two and a half weeks ago a Dutch district court published its judgment, which is now final as no appeal was submitted. The interactive process was appreciated by the next of kin, in particular because the Dutch public prosecution closely included them in the process and managed expectations. Some of the next of kin expressed that “justice is done, whatever the decision is.” This, however, relates to the larger challenge of identifying what affected communities want specifically. The ICC is often unable to provide the type of justice similar to MH17 to affected communities.

Focusing on defendant’s rights, Marie O’Leary noted the importance of deGuzman’s book by centralizing gravity. As the ICC is working with a public with a wide understanding of cases and gravity, the discussions in the book encourage a common understanding and open dialogue. The gravity discussion may guide and help in evaluating the purpose of what it is we’re doing. Panelists specifically referred to the issues surrounding early release: gravity is at times used as a foil for having conversations that need to be had.

The panelists and participants agreed on the importance of deGuzman’s book and its theoretical exploration of gravity and the call for dialogue and engagement in identifying rationales for decision making.