In The Hague, it will be 4 pm at noon Buenos Aires, where the International Court of Justice (ICJ) announces its decision on a request for preventive measures from Ukraine in a lawsuit against Russia against the invasion that began on February 24.
Infobae exclusively interviewed Harold Koh, one of the leading American experts on international law and human rights, a lawyer leading the strategy against Putin's regime. Ko served as a professor at Yale Law School since 1985 (he served as dean from 2004 to 2009). From 2009 to 2013, he served as Chief Legal Advisor at Hillary Clinton's Department of State. He also served as Chief Legal Advisor for Hillary Clinton from 1998 to 2001. He served as Secretary of State for Democracy, Human Rights, and Labor for the Clinton administration.In his career in defending human rights It has won 17 honorary titles and more than 30 awards.
— In a presentation to the court, he said, for example, in Crimea that the world had not stopped Russia in the past. What could have been done?
— The 2014 response may be similar to what we are seeing today. Coordinated international actions, sanctions, etc.However, in 2014, Putin insisted that Ukraine was doing something wrong and that it should be stopped. He never admitted that he was invading another country. He did all this to create the impression that he did not violate international law. This was his game plan, the script. And what happens now is that he tried to do it again, but this time he can't deceive us.
— In a conversation with the court, he said it was a unique event that until now the permanent member of the UN Security Council had only imagined as a hypothesis of openly encroaching on an innocent nation. Is it really unique? For example, in the war in Iraq, you can not think that the United States accused him of violating international law?
— Well, I think this is the essence of the problem we are facing. The United States has received tremendous support for doing so. The Russians are acting alone, except for Belarus, but I think this is a problem. Are there two rules for international law (one is for strong countries and the other for weak countries)? What I tried to argue in court is that everything that Ukraine asks of Russia was ordered to restrict the movement of troops. It is that such a measure is an issue that the court has already ordered in relation to small countries in the past (the same was true for the United States.Nicaragua). So why should it be possible to place an order for some countries, not Russia, when the violation is so obvious?
— But what will happen if today the court resolves a request for preventive measures in favor of Ukraine? Will Russia comply with it? And if you do not comply, what can you do if the Security Council has the right to veto?
— Their game is power. Our game is right, that's why we quoted the case of Marbury vs. Madison. [Note: It refers to the 1803 ruling that the Supreme Court of the United States created judicial control over the Constitution in a very creative way without issuing an order that the court could not enforce it.] decision.” But the truth is that no court in the world has its own power; every court needs a third party to enforce its judgment.
The important point here is to leave Putin as an isolated bandit in the interdependent world. If he proves that he lies about the facts and lies about the law, he achieves three goals:
First, leave them in isolation, weaken their bargaining power and reduce the likelihood of winning allies. Especially in China, it is much more difficult to support Putin if he is classified as a bandit who works outside the law, because he thinks he plans to operate in the world of law. And if China does not support it, Putin will eventually sit down and negotiate.
Secondly, the ICJ order can go to the General Assembly of the United Nations (which, in fact, is already in action) within the framework of the resolution “Union for Peace” of 1950. [Note: This is Resolution No. 377, which was created to avoid Russia's continued veto in connection with the Korean War; the lack of agreement between the member states does not take actions that preserve international peace and security; the General Assembly itself should recommend collective measures, including the use of force]. It is also necessary to check what strategies will be adopted in the Security Council.
Thirdly, if the court decides to ask for preventive measures in favor of Ukraine, this lays the foundations for sanctions and personal responsibility. If the ICJ clearly states that Russia is acting illegally, the possibility of prosecuting Putin for crimes of aggression or war is strengthened.
Putin is obsessed not only with the cobweb of lies, but also by the cobwebs of the law. We're trying to connect these two things. Let's imagine what happens when someone becomes a bandit, an outlaw, an outlaw. They start to be captive because their freedom of movement and ability to travel are limited, their families are complicated, they cannot move money, and everything they do is illegal. That's what Milosevich, Karazic and Pinochet did, and that's what we should do with Putin.
— This is related to what was said to the court. Your decision will be “an essential spark that inspires other institutions and institutions with international capacity to take other measures necessary to protect peace, security and human rights in this crisis.” Do you think that a clear ICJ order in favor of Ukraine could inspire the International Criminal Court, whose prosecutors are already acting, to seek real sanctions against Putin and his collaborators?
— Well, this court is in a town [The Hague] and is a city the size of New Haven, Connecticut [Note: where Yale University is located]. If the court says that what Russia does is illegal in principle, it increases the chances of assigning individual responsibility. The Criminal Court has already received complaints from 39 countries, Ukraine has agreed to the investigation, and the prosecutor Karim Khan is ready to move forward. In addition, the investigation includes everything that has happened since 2014, which opens up the possibility of assessing a long historical period in order to determine that Putin is responsible and guilty.
What I wanted to tell ICJ is that the law requires a hook. It's the one who moves first. When a major UN judicial body says “lies about facts and lies about the law,” it makes it easier for other international tribunals to move forward. This is what we often have to tell the courts. We can't do anything, but we don't ask them to do everything. We need to give them enough courage to act, but we should not let them believe that action will be impossible.
— What happens to the crime of aggression when talking about personal responsibility? Looking at the current crisis, do not you regret the position of the United States in the discussion of reforming the Roman decree of 2010? As a result, were there significant restrictions on the jurisdiction of the Criminal Court for crimes that are easier to prove to Putin today than war crimes?
- No, not at allThe main obstacle is that Russia does not accept the jurisdiction of the courts for the crime of aggression. In fact, this is what the Khan prosecutor said.
- That's right.
— What was done in the 2010 reform was to set very high standards for the crime of aggression; however, this case reaches standards such as planning, preparation, initiation or execution. Effective control of military actions. All this has been achieved.The nature, severity and scale of aggression.Obvious violations of the UN Charter.This violates the sovereignty, territorial integrity or political independence of other states.There is aggression, bombardment, blockade, attack, dispatch of troops and the use of irregular armed groups under control.
— I fully agree, but once again I have no jurisdiction.
— Jurisdiction must be accepted.It is a consensus procedure, and Russia did not accept it.In Nuremberg they defeated them.Here they are on the battlefield and we don't know what will happen.If they were not detained because they were beaten, we would have to agree to jurisdiction.
— For war crimes and crimes against humanity, the consent of both countries is not required. It is enough to have the consent of Ukraine. And this standard was driven by the United States.Don't you really think it was a mistake?
- That's not what we did. I was there. What we did was set a very high standard. In my opinion, there are situations where there are legitimate humanitarian reasons for intervention. The point is that what Russia claims is false, but women's lawyers can distinguish between interventions to prevent genocide, invented as in Libya, and those created to prevent real genocide, so they do not regret anything.
- I do not specifically mean you, I wonder if it is not a shame to prevent the application of crimes that are easy to prove (aggression crimes), as I said now, by setting significant restrictions in the jurisdiction.
— Let's consider the differences. At the moment, the most important thing is not to criminally prosecute Putin, but to take him to negotiations where there is a truce and stop killing civilians.Do you agree?
— Yes.
“If he thinks that the first step is to prosecute him for a crime, he will not go. Therefore, this is based on what happened in Dayton [Note: a peace treaty signed between Serbia, Croatia, Bosnia and Herzegovina in 1995]. War criminals Milosevic (Milosevic) and Karadzic entered into a ceasefire agreement, resulting in Dayton leaving the Hague and both were chased. Milosević died and Karazic was imprisoned. That's what should happen to Putin. I will not prosecute you. The Nazis are defeated. Putin has 200,000 armies and tanks. The first thing lawyers will do is to prosecute you criminally. All you want is to stop killing boys and girls.
We need to be pragmatic: it is necessary to weaken positions, isolate, impose negotiations, accept a ceasefire, accept the entry of UN troops, prevent the military from committing war crimes, reaching political solutions that Zelenski can accept, and open the possibility of judging individual responsibilities later.
— ICJ has moved pretty quickly. Do you think this is what you expect today to make a decision in favor of Ukraine?
- It was moving very fast in just 9 days.I don't even bet on a football match, but it would be strange to move too fast because they said they had no jurisdiction. When I spoke in court, I saw them with my eyes and I think the majority would decide in favor of a strong order in favor of Ukraine. Otherwise, it will take longer to take some time. There are judges who want to limit the impact on the situation, but make decisions so You can't block it quickly.So... I'll see it.
— Is there any reason to make it a unique enough example to start thinking about the reform of the Security Council? After 76 years, can we expect countries with the right to veto still maintain international peace and security when they are countries that put international peace and security at risk? I'm referring not only to Russia, but also to the United States.
- Yes, of courseKofi Annan already acknowledged this in the Millennium Report. This is an absurd situation. For example, France and the United Kingdom have the right to veto, but India, Brazil, and even some continents have no representation. The problem is that structural reforms are very difficult, and they will always have the right to veto. This is not a necessary system for the 21st century. And it tells me something else, which is being revealed to me. Suppose a permanent member commits a genocide, but opposes his own people. Can other countries legally intervene to prevent this, or can a veto block them? Today we are not in such a scenario, but it is a real problem.
From the time I was a student until 1986-1987, everything revolved around how to avoid Russia's veto in the framework of the Cold War. And from 1987 to 2011, Russia was no longer a problem because it was no longer a problem. In this second phase, many young scholars of international law were absolute defenders of the Security Council because they believed that Russia would cooperate. And here we are thinking again about how to overcome Russia's right to veto. That's where I started my career. It's about going back.Older Adults sometimes have advantages.
— And what about the veto of the United States? From the perspective of a small neighboring country like Argentina, we are always making each other's crazy decisions that jeopardize international peace and security, but without words or votes.
— I don't think Argentina is a small, marginal country. He thinks he is a leader in Latin America. With the Latin American bloc being united to protect democracy and human rights, Argentina is a very strong voice. Like Chile and Uruguay, they play a big role right now when dealing with Bolsonaro or Venezuela, which are negative forces on the continent. It is essential to continue betting on democracy and rule of law.
As for the right to veto in the United States, if the country has a decent foreign policy, it is not necessary to use that power, because now it is related to Biden and thinks that he is not with Trump.
“Well, but it's just as accidental as the history of Russia's veto rights. Whether the veto is good or bad does not depend on whether Biden or Trump dominates it. The question is what to do from a structural point of view.
— Yes, as I said: I am in favor of the reform of the Security Council, but it is difficult to achieve it. The question is how to deal with the rules we have. If Russia has the right to veto, can we do something about it?
International law is like cancer medicine. If the patient can endure it, it will be effective. If the Ukrainians survive, the international system will be able to protect them. This is what we expect, and this is why we bring the case to the ICJ.
This will be Putin's Vietnam, I think he made a tragic miscalculation and signed his exit ticket with it.
—
Before saying goodbye, Harold Ko says that he met a student who was invited to an international law conference a week before the outbreak of the epidemic and showed him around the city of Kiev.Tata Maharian, an idealist in international law. A few days ago he saw her again. This time I was on CNN. Tata is dressed as a soldier and works as a volunteer in a war hospital. He says that he looks at the camera and sees the bombings and the bodies of boys and girls. “I studied international humanitarian law. I never thought I could see it with my own eyes.”
International humanitarian law is still here. Ko thinks about a decision that, in this case, expects a lot from the International Court of Justice.
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