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Russian War on Ukraine: The Urgent Need and Opportunity to Design a Sound System of Justice - ARIA - Vol. 34, No. 2

Author(s): 
Olga Hamama
Khrystyna Pogoretska
Page Count: 
10 pages
Published: 
April, 2024
Jurisdictions: 
Russia,
Ukraine,
International
Practice Areas: 
Enforcement of Arbitral Awards,
Formal Requirements,
ICC,
ICJ,
Right to Decide on Jurisdiction,
Investment Disputes,
BITS,
Specialized Arbitration,
Time Limit for Rendering Award,
Deposit of Costs
Tags: 
ECHR,
crime of aggression
Author Detail: 

Olga Hamama is an international disputes resolution lawyer admitted to the German bar.  Ms. Hamama is Special Counsel at the International Litigation and Dispute Resolution department of Clifford Chance, based in Frankfurt, Germany. She is also Arbitrator at the Court of Arbitration for Sport and President of the international NGO, United for Ukraine Association.

Khrystyna Pogoretska is a Foreign Trainee Lawyer in Litigation and Dispute Resolution Team at Clifford Chance, temporarily based in Frankfurt, Germany. She is a Ukraine-qualified lawyer and holds a master’s degree from the National University of “Kyiv-Mohyla Academy” (Ukraine, Kyiv).

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Description: 

Originally from The American Review of International Arbitration (ARIA)

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I.     INTRODUCTION

As we write this article, almost one and a half years have passed since Russia launched a war of aggression on Ukraine, gravely violating international law. Ukraine has undertaken different legal measures to remedy the situation. A closer look reveals the deficiencies of the existing legal framework to prevent the war and hold Russia accountable for the atrocities and crimes committed in Ukraine. Despite the tragedy, this situation provides a unique opportunity for the international community to address existing gaps and to design a sound mechanism that would restore justice and serve as a solid foundation for a peaceful future.

This short contribution briefly depicts the shortcomings of the existing system (Part I) and discusses possible solutions (Part II).

II.    AVAILABLE MECHANISMS FALL SHORT OF DELIVERING JUSTICE

Compensation for war damages could be sought on the national and international levels. National remedies, such as criminal investigations and compensation proceedings before the domestic courts, pose a number of challenges related to capacities, pathways to enforcement, and their overall deterrent potential in view of the scale of injustice and the need to ensure accountability on the international level.  However, the existing instruments of international law do not provide for a comprehensive accountability pathway either. The jurisdictional hurdles of the existing mechanisms and the limited scope of the review are among the critical limitations of the existing fora. The following section will briefly highlight the peculiarities of the (A) International Criminal Court, (B) International Court of Justice, (C) European Court of Human Rights and (D) International Investment Arbitration.