What do you do if your country is invaded, your parents and kids are killed when trying to escape the occupation, your wife is gang-raped, and you are beaten to death because you speak a language the invaders hate? What do you do if the invaders have looted your house, plundered your farm, or taken your factory away from you?
The 2022 Russian war against Ukraine has already become the biggest military disaster in Europe after World War 2. This war was initiated by a nuclear super-power and a permanent UN Security Council member against a nation whose security the former had guaranteed with its own sovereign signatures under numerous international treaties. The aggressor-state has clearly manifested its primary agenda behind launching the war: it clearly aims to erode the fundamentals of post-WW2 public international law by undermining the global security framework. It has decided to start with demolishing Ukraine.
By launching and waging the war, Russia has already severely breached the most important rules of public international law as well as numerous national laws of various jurisdictions. The scope of such violations is simply overwhelming – they go across almost all branches of law, both national and international, and they cross national boundaries and continents.
Many of them hurt the sovereign rights and interests of various states, including Ukraine. Yet many of them also hurt the rights and interests of private parties. And here comes the key question – do private parties have the right of recourse against the aggressor-state for such losses?
Regretfully, the question remains largely open. The key obstacles are three-fold: (1) under public international law, private parties are precluded from having direct recourse against the aggressor-state (however imperfect those public international law instruments may currently be); (2) in the national law dimension, private parties’ ability to act is constrained by the sovereign immunity defense principle; and (3) finally, there is a challenging 2012 decision of the International Court of Justice in Germany vs. Italy: Greece Intervening where the ICJ confirmed the jurisdictional immunities of the state in the context of private-law claims for war-inflicted damages.
Hence, the injured private parties seem to avail themselves of only the national legal means to protect their legitimate rights. Those means are still severely restrained by the sovereign immunity defense that is regretfully available also to the aggressor-state.
The above legal obstacle must be overcome one way or another to provide injured private parties with the right of full redress against the aggressor-state. Theoretically, that can be achieved either (1) by taking purely national legal measures aimed at dishonoring the aggressor-state sovereign immunity defense, or (2) by changing public international law.
There are certain indications that selected countries plan on going along the former route. By doing that, they will certainly encounter legal difficulties in (1) breaching the sacred comity of nations doctrine and (2) likely limiting the effect of any such court decision to their own territorial realms.
Given that, the latter route may seem to be more straightforward yet longer to achieve. The two known international conventions – the already effective European Convention on State Immunity (ETS no. 074) and the yet to become effective 2004 United Nations Convention on Jurisdictional Immunities of States and Their Property – took ages to develop. Plus, they lack the degree of coercion that is needed for the aggressor-states. And, certainly, they have no universal application.
In reality, the most reasonable way to achieve the goal may be a combination of both mechanisms. If a critical number of states legislate that aggressor-states be denied sovereign immunity defenses within their domestic jurisdictions, they will jointly set up a new public international law custom. That would be fairly quick to achieve on the one hand, and the custom will have a universal application on the other hand. On top of that, a new international convention can eventually be adopted.
The current war, the egregious violations of both public international law and domestic law rules of various nations by Russia, and the level of atrocities committed by its troops impel the international community to weave the above coercion mechanism into the fabric of public international law. We believe that it will be the primary task of the New Allied Nations – a new coalition of democratic nations that is being formed before our very eyes.
By Olexander Martinenko, Partner and Head of Dispute Resolution, Kinstellar