*une version française de cet article est disponible > ici <

A year ago, on February 24, 2022, the Russian Federation started the invasion of Ukraine. This invasion is a violation of the UN Charter[1] and is the start of an international armed conflict and therefore marks the start of the applicability of International Humanitarian Law (IHL – the Geneva Conventions).

UN Charter, Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
…
4.  All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

What is striking here is the actual reality of the invasion: How is that possible in 2022 in Europe?

Which leads us to more questions:

Are there no safeguards or instruments that could have prevented this aggression?
Have they not been implemented?
What reactions have been noted at the international and European levels?
What could be implemented to restore the international legal order?

I. Safeguards and context

A. An effort to create lasting peace through cooperation and legal agreements

In the aftermath of World War II, European countries had a will to consolidate relations between them, especially through cooperation and economic ties, in order to avoid the resurgence of such conflicts.

This process led to the creation of the Council of Europe in 1949, whose main objectives are to promote democracy, human rights and the rule of law, and to the start of the European construction, through the creation of the European Coal and Steel Community in 1951.

At the international level, the United Nations have been established right after the war, in 1945, to promote cooperation and assistance to resolve disputes. As mentioned above, the UN Charter (the founding document of the UN) advocates for the pacific settlement of disputes in its Chapter IV.

Note on the use of violence to resolve conflicts:

Before 1945, this was a “natural” way of resolving disputes and was regularly used between States.

In 1945, States decide this should not be the preferred mean, and enshrine in the UN Charter that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” and that  “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” – UN Charter, article 2 paragraphs 3 and 4.

So, States should refrain from starting armed conflict. But, under some circumstances, the use of violence is still “permitted”:

1. The UN Security Council may decide to take actions “as may be necessary” (the international law wording to refer to armed actions) in order to “maintain or restore international peace and security.” – UN Charter article 42.
2. A State may act in self-defense – UN Charter article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

In the matter at stake in this article, Ukraine acted in self-defense against the attack, invasion, aggression of Russia, after the violation of the UN Charter by the latter.

Since two States are fighting against one another, this situation is classified as an international armed conflict by international humanitarian law (IHL). Therefore, IHL now applies and aims at protecting the people impacted by the conflict.

B. Hints and signs opening way for a Russian occupation

Ukraine has been partly annexed by the Russian Empire in 1793, and completely in 1922, after an internal civil war.[2] In 1991, with the fall of the Soviet Union, Ukraine became independent from the USSR but the transition for democracy has not been an easy path.

Less than 10 years ago, Russia invaded and started occupying the Crimean region of Ukraine, leading to its annexation. The Minsk Agreements have been signed between Ukraine and Russia in 2014 and 2015 included interalia a ceasefire and were conducted and implemented under the auspices of the OSCE (Organization for Security and Co-operation in Europe) – click here to learn more about the Minsk Agreement.

The influence of Russia over Ukraine, especially in politics, has led to a “turning from” the European union and “turning on” Russia. Before the 2022 invasion, press articles were already discussing a possible invasion from Russia.

See, for example, the following articles:

• https://www.thebulwark.com/war-europe-could-be-imminent-ukraine-russia-putin-biden/
• https://ecfr.eu/publication/the-crisis-of-european-security-what-europeans-think-about-the-war-in-ukraine/
• https://news.un.org/en/story/2022/02/1112412

With the start of this current conflict[3], a year ago, and the subsequent annexation of territories in the Donetsk, Luhansk, Zaporizhzhia and Kherson regions of Ukraine on 30 September 2022, the mission of the OSCE to implement the Minsk agreements has been put to a hold.[4][5] But this conflict have had – and continue to have – much more dire impacts than that.

II. The impacts of the war at the national, European and international levels

A. Power shift and changing relations…

This armed conflict has influenced lots of changes in Europe, especially the following:

It recalled that armed conflict are not that far from “us” and do not always happen “far away”.

It reinforced the need to be less dependent from Russia – especially energy-wise.[6]
The economic impact have had consequences all over Europe, with many companies leaving Russia or stopping working with/in Russia, international sanctions, and the subsequent inflation.[7]

It strengthened ties between Ukraine and the European Union, with Ukraine obtaining the “candidate country” status to European Union membership.[8]
It also brought back to the forefront the (old) idea of a Europe common defense and the role of NATO. Indeed, Sweden and Finland decided to join NATO in May 2022: “Russian President Vladimir Putin has cited NATO expansion as one of the main reasons for invading Ukraine, but it appears the invasion has had the opposite effect of strengthening the western military alliance.”[9]

Subsequently to the invasion, Russia has been excluded from the Council of Europe in March 2022 – it joined in February 1996[10] – in reaction to the “unjustified and unprovoked aggression” of Ukraine.[11]

B. …in response to the impacts of the war

The motor and core to these changes are the dire impacts of war:[12]

• Annexation of regions and related displacement of people;
• Increased risk of human trafficking;[13]
• Attack against energy infrastructures;
• War crimes (see more under Sources);
• Freedom of information and right to peaceful assembly: crack down on independent media in Russia;
• Right to food / food insecurities;
• Destruction of cultural heritage sites;[14]
• Use of mercenaries.[15]

III. What actions have been taken and what can be done?

As discussed above, the European Union and Council of Europe showed support to Ukraine, economically and politically, and Ukraine is applying to EU membership. Apart from the support to Ukraine, what measures have been taken against Russia and the Russian invasion?

A. At the political level

European Union (EU)

The EU repeatedly condemned the war of aggression against Ukraine, as early as 24 February 2022:

“The European Council demanded that Russia:

• immediately ceases its military actions
• unconditionally withdraws all forces and military equipment from Ukraine
• fully respects Ukraine’s territorial integrity, sovereignty and independence
• respects international law
• stops their disinformation campaign and cyber-attacks”.[16]

Subsequently, the EU decided on sanctions and restrictive measures, mainly economic, against Russia. On 25 February 2023, the EU adopted its 10th of restrictive measures against Russia.[17]

Moreover, the European Commission has announced, in early 2023, the launch of a center, the International Center for the Prosecution of the Crime of Aggression, that will coordinate the collection of evidence against Russia for the crime of aggression (see more under the Legal level part), to ensure accountability.[18] This Centre will be operational in July 2023. [19]

United Nations (UN)

The United Nations mains organs (the Security Council, the General Assembly and the Office of the High Commissioner for Human Rights – OHCHR) have denounced and condemned the armed actions and invasion of Ukraine by Russia.

Following the invasion, the UN Security Council (UN SC) had a meeting during which it was prevented from “exercising its responsibility to uphold international peace and security” and “exercising its primary responsibility for the maintenance of international peace and security” due to the veto of the Russian Federation. As a result, the General Assembly has decided to resort to a procedural resolution, which “[precludes] the use of a veto by the Council’s permanent members (China, France, Russian Federation, United Kingdom, United States),” to adopt resolution 2623 (2022).[20]

In April 2022, the UN Assembly General (UN AG) decided that if a veto is used by any of the five permanent Member States in the Security Council, the UN GA automatically meets within 10 days so “all UN members can scrutinize and comment on the veto.”[21]

B. At the legal/judicial level

The armed conflict and invasion of Ukraine by Russia is a “crime of aggression” which, as defined by the Rome Statute of the International Criminal Court, “means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[22]

European Court of Human Rights (ECHR)

At the request of the Ukrainian Government, and in application of Rule 39 of the Rule of the Court[23], the ECHR requested interim measures (“urgent measures that aim to prevent an imminent risk of irreparable harm”)[24] and asked the Russian Government to refrain from “military attacks against civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.”[25]

However, the ECHR’s purpose is to ensure the respect and implementation of the European Convention of Human Rights, and will deal with violations of human rights (and not war crimes).[26]

(You can find here the list of pending cases before the Court.)

International Law and the International Court of Justice (ICJ)

The following case is pending before the ICJ: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).[28]

The process started back in February 2022 and is ongoing. At the current stage, Ukraine had until early February 2023 to present its conclusions and observations the preliminary objections raised by the Russian Federation.

(this part may be updated depending on developments)

International penal law and the International Criminal Court (ICC)

The International Criminal Court has jurisdiction with respect to genocide, crimes against humanity, war crimes, and the crime of aggression[29] (know as international crimes).

As early as 28 February 2022, the ICC Prosecutor decided to “proceed with opening an investigation.”[30] This is an important move from the Prosecutor as Ukraine is not part of the ICC and cannot seize the Court (to learn more about the ICC, click here). The investigation focus on crimes committed since November 2013 (and the invasion of Crimea).[31]

(this part may be updated depending on developments)

Moreover, the ICC and Eurojust are cooperating on a joint investigation team on international crimes committed in Ukraine.[32]

Ways forward?

While the outcome of this war is still out of reach, one year in, we witness actions taken towards accountability and continued support shown to Ukraine, as well as the incredible resilience of the Ukrainian people. We hope for justice and accountability, through the use of the European and International Courts as well as through the use of universal jurisdiction and, maybe, to the implementation of a dedicated Court, as it has been the case with the International Criminal Tribunal for the former Yougoslavia or the International Criminal Tribunal for Rwanda.

Sources/To know more:

UN Charter https://www.un.org/en/about-us/un-charter/chapter-1

Office of the High Commissioner for Human Rights’ page on Ukraine https://www.ohchr.org/en/countries/ukraine

About the history of Ukraine and its links with the USSR and then Russia

• https://www.nationalgeographic.fr/histoire/russie-ukraine-les-origines-de-la-crise-expliquees
• https://www.osce.org/ukraine-latest

International Criminal Court, Rome Statute https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

About ad-hoc international tribunals https://www.icrc.org/en/document/ad-hoc-tribunals
https://www.icrc.org/fr/doc/war-and-law/international-criminal-jurisdiction/ad-hoc-tribunals/overview-ad-hoc-tribunals.htm (in French)

About international crimes

• https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml
• https://www.justiceinitiative.org/uploads/cf498f48-0f30-453a-9e4e-36701512f646/mx-factsheet-icl-20160603_0.pdf
• https://www.eurojust.europa.eu/crime-types-and-cases/crime-types/core-international-crimes
• https://www.icc-cpi.int/sites/default/files/Publications/Elements-of-Crimes.pdf

About the crime of aggression https://coalitionfortheicc.org/explore/icc-crimes/crime-aggression

About war crimes in Ukraine

• https://time.com/6156680/war-crimes-putin-russia-zelensky-challenges/
• https://www.aljazeera.com/news/2022/3/8/germany-launches-probe-into-suspected-war-crimes-in-ukraine
• https://www.reuters.com/world/europe/un-names-experts-probe-possible-war-crimes-ukraine-2022-03-30/
• https://www.reuters.com/world/europe/eu-seeks-set-up-russian-war-crimes-tribunal-von-der-leyen-2022-11-30/
• https://iwpr.net/global-voices/ukraine-the-quest-for-justice
• https://www.reuters.com/world/europe/how-are-war-crimes-ukraine-being-investigated-2023-02-23/
• “Prosecuting Aggression against Ukraine as an ‘Other Inhumane Act’ before the ICC” https://academic.oup.com/jicj/article-abstract/20/5/1061/6917097?redirectedFrom=fulltext

Analysis of the conflict and/or one-year analysis

• https://www.euractiv.com/section/global-europe/opinion/a-year-in-ukraines-eu-integration-and-the-path-to-peace/
• https://neighbourhood-enlargement.ec.europa.eu/news/speech-president-von-der-leyen-european-parliament-plenary-one-year-russias-invasion-and-war-2023-02-15_en
• https://blogs.icrc.org/law-and-policy/2022/03/17/armed-conflict-in-ukraine-a-recap-of-basic-ihl-rules/
• https://2idhp.eu/point-de-vue/la-guerre-en-ukraine-une-analyse-de-droit-international/ (French only)

Guidelines for documenting international crimes https://www.icc-cpi.int/news/icc-prosecutor-and-eurojust-launch-practical-guidelines-documenting-and-preserving-information

Many other conflicts are ongoing on different parts of the world, to learn more about that, check out the following links:

• https://www.euronews.com/my-europe/2021/07/23/are-european-arms-fuelling-wars-and-conflicts-worldwide
• https://www.cfr.org/global-conflict-tracker/

[1] UNSDG, “Russia’s invasion of Ukraine is a violation of the UN Charter, UN Chief tells Security Council” (5 May 2022) https://unsdg.un.org/latest/announcements/russias-invasion-ukraine-violation-un-charter-un-chief-tells-security-council (consulted on 7 February 2023)

[2] National Geographic, “Russie-Ukraine : les origines de la crise expliquées” (last update 24 Feb. 2022) https://www.nationalgeographic.fr/histoire/russie-ukraine-les-origines-de-la-crise-expliquees (consulted on 20 Feb. 2023)

[3] Permanent representation of France to the OSCE, “The OSCE and Russia’s war of aggression against Ukraine” (last update 31 Jan. 2023) https://osce.delegfrance.org/The-crisis-in-and-around-Ukraine (consulted on 20 Feb. 2023)

[4] OSCE, “Annexation of Ukrainian territories is illegal and a threat to human rights, say OSCE human rights Director and OSCE media freedom Representative” (6 Oct. 2022) https://www.osce.org/odihr/528075 (consulted on 20 Feb. 2023)

[5] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

[6] Le Monde, « Guerre en Ukraine : le plan de la Commission européenne pour se passer des hydrocarbures » russes (8 March 2022) https://www.lemonde.fr/economie/article/2022/03/08/le-plan-de-la-commission-europeenne-pour-se-passer-des-hydrocarbures-russes_6116667_3234.html?xtor=EPR-32280629-%5ba-la-une%5d-20220309-%5bzone_edito_1_titre_3%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[7] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

[8] European council, “European Council conclusions on Ukraine, the membership applications of Ukraine, the Republic of Moldova and Georgia, Western Balkans and external relations, 23 June 2022” https://www.consilium.europa.eu/en/press/press-releases/2022/06/23/european-council-conclusions-on-ukraine-the-membership-applications-of-ukraine-the-republic-of-moldova-and-georgia-western-balkans-and-external-relations-23-june-2022/ (consulted on 23 Feb. 2023)

See more:

https://www.reuters.com/business/aerospace-defense/ukraine-becomes-eu-membership-candidate-battle-east-enters-fearsome-climax-2022-06-23/

https://www.europarl.europa.eu/news/en/press-room/20220616IPR33216/grant-eu-candidate-status-to-ukraine-and-moldova-without-delay-meps-demand

https://ec.europa.eu/environment/enlarg/candidates.htm

https://neighbourhood-enlargement.ec.europa.eu/european-neighbourhood-policy/countries-region/ukraine_en

“On 28 February 2022, Ukraine sent its application for EU membership. On 17 June 2022, the European Commission presented its Opinions […] Ukraine was given a European perspective and granted candidate status on 23 June 2022 by unanimous agreement between the leaders of all 27 EU Member States.”

FR https://france.representation.ec.europa.eu/informations/adhesion-de-lukraine-lue-comment-ca-marche-2022-06-24_fr

Le Monde, “Les Vingt-Sept excluent l’idée d’une adhésion rapide de l’Ukraine à l’Union européenne” (11 March 2022) https://www.lemonde.fr/international/article/2022/03/11/les-vingt-sept-excluent-l-idee-d-une-adhesion-rapide-de-l-ukraine-a-l-union-europeenne_6117011_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220311-%5bzone_edito_1_titre_1%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[9] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

New York Times, “Ukraine War Accelerates Shift of Power in Europe to the East” (26 Jan. 2023)

https://www.nytimes.com/2023/01/26/world/europe/eu-nato-power-ukraine-war.html (consulted on 23 Feb. 2023)

[10] République Française, Vie publique “Guerre en Ukraine : la Russie exclue du Conseil de l’Europe” (18 March 2022) https://www.vie-publique.fr/en-bref/284440-guerre-en-ukraine-la-russie-exclue-conseil-de-leurope (consulted on 23 Feb. 2023)

Council of Europe, “The Russian Federation is excluded from the Council of Europe” (16 March 2022) https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe (consulted on 23 Feb. 2023)

[11] Council of Europe, War in Ukraine https://www.coe.int/en/web/portal/war-in-ukraine (consulted on 23 Feb. 2023)

[12] Timelines of violations:

Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022

Le Monde, “Guerre en Ukraine” https://www.lemonde.fr/crise-ukrainienne/

[13] Reuters, “COVID-19 cut known human trafficking, but Ukraine war a risk: U.N.” (24 Jan. 2023) https://www.reuters.com/world/covid-19-cut-known-human-trafficking-ukraine-war-risk-un-2023-01-24/ (consulted on 23 Feb. 2023)

[14] UN, “Ukraine: deliberate destruction of culture must stop, say rights experts” (23 Feb. 2023) https://news.un.org/en/story/2023/02/1133762 (consulted on 27 Feb. 2023)

[15] OHCHR, Statement by the UN Working Group on the use of mercenaries warns about the dangers of the growing use of mercenaries around the globe (last update 4 March 2022) https://www.ohchr.org/en/statements/2022/03/statement-un-working-group-use-mercenaries-warns-about-dangers-growing-use

OHCHR, International standards Working – Group on the use of mercenaries https://www.ohchr.org/en/node/3383/international-standards (consulted on 23 February 2023)

ICRC, The Issue of Mercenaries https://casebook.icrc.org/case-study/issue-mercenaries (consulted on 23 February 2023)

[16] European Council, Special meeting of the European Council, 24 February 2022 https://www.consilium.europa.eu/en/meetings/european-council/2022/02/24/?utm_source=linkedin.com&utm_medium=social&utm_campaign=20220224-special-euco&utm_content=carousel (consulted on 23 Feb. 2023)

[17] European Commission, “EU sanctions against Russia following the invasion of Ukraine” (last update 21 Dec. 2022) https://ec.europa.eu/commission/presscorner/detail/en/fs_22_1402 (consulted on 23 Feb. 2023)

European Council, “EU response to Russia’s invasion of Ukraine” https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/?utm_source=linkedin.com&utm_medium=social&utm_campaign=20230225-russia-sanctions-10package&utm_content=visual-card (consulted on 27 Feb. 2023)

[18] VOA, “European Commission to Set Up Center for Prosecution of Russia’s ‘Crime of Aggression’” (2 Feb. 2023) https://www.voanews.com/a/european-commission-to-set-up-center-for-prosecution-of-russia-s-crime-of-aggression-/6945659.html (consulted on 23 Feb. 2023)

[19] JusticeInfo.Net « UKRAINE: LE CENTRE D’ENQUÊTES SUR LE CRIME D’AGRESSION OPÉRATIONNEL EN JUILLET » (17 Feb. 2023) https://www.justiceinfo.net/fr/112533-ukraine-le-centre-denquetes-sur-le-crime-dagression-operationnel-en-juillet.html (consulted on 23 Feb. 2023)

[20] UN, Ukraine – Security Council, 8980th meeting (27 Feb. 2022) https://media.un.org/en/asset/k1x/k1x01ewk24?fbclid=IwAR0nMEu8e_zgJl9RfG4SjxZl5x6X6VDu_rKfQf0xBfUvXyhxttC9urQZTNs (consulted on 23 Feb. 2023)

UN, “Security Council Calls Emergency Special Session of General Assembly on Ukraine Crisis, Adopting Resolution 2623 (2022) by 11 Votes in Favour, 1 Against, 3 Abstentions” https://press.un.org/en/2022/sc14809.doc.htm

[21] Le Monde, « Guerre en Ukraine : les Nations unies adoptent l’obligation de justifier tout veto, sur fond de blocage russe sur l’Ukraine » (last update 27 Apr. 2022) https://www.lemonde.fr/international/article/2022/04/26/les-nations-unies-adoptent-l-obligation-de-justifier-tout-veto-sur-fond-de-blocage-russe-sur-l-ukraine_6123773_3210.html (consulted on 23 Feb. 2023)

United Nations, “UN General Assembly mandates meeting in wake of any Security Council veto” (26 Apr. 2022) https://news.un.org/en/story/2022/04/1116982 (consulted on 23 Feb. 2023)

[22] International Criminal Court, Rome Statute, article 8bis https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

[23] “Under Rule 39 of the Rules of Court, the Court may indicate interim measures to any State Party to the European Convention on human Rights. Interim measures are urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm.”

[24] ECHR Blog, “ECHR issues interim measures concerning Russian military operations in Ukraine” (1 March 2022) https://www.echrblog.com/2022/03/echr-issues-interim-measures-concerning.html (consulted on 23 Feb. 2023)

[25] European Court of Human Righs, Press release “The European Court grants urgent interim measures in application concerning Russian military operations on Ukrainian territory”, ECHR 068 (2022) (1 March 2022) https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7272764-9905947&filename=The%20Court%20grants%20urgent%20interim%20measures%20in%20application%20concerning%20Russian%20military%20operations%20on%20Ukrainian%20territory.pdf (consulted on 23 Feb. 2023)

[26] Julia Crawford, JusticeInfo.Net, “UKRAINE VS RUSSIA: WHAT THE EUROPEAN COURT OF HUMAN RIGHTS CAN (AND CAN’T) DO” (7 Apr. 2022) https://www.justiceinfo.net/en/90187-ukraine-russia-european-court-of-human-rights-can-do.html (consulted on 23 Feb. 2023)

[27] European Court of Human Rights, Inter-State applications https://www.echr.coe.int/Pages/home.aspx?p=caselaw/interstate&c= (consulted on 23 Feb. 2023)

[28] International Court of Justice, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) https://www.icj-cij.org/case/182

See also (in French) Le Monde, “Guerre en Ukraine : Kiev plaide contre la Russie devant la Cour internationale de justice” (7 March 2022) https://www.lemonde.fr/international/article/2022/03/07/guerre-en-ukraine-kiev-plaide-contre-l-invasion-russe-devant-la-cour-internationale-de-justice_6116402_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220307-%5bzone_edito_1_titre_2%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[29] International Criminal Court, Rome Statute, article 5.

[30] International Criminal Court, “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.”” (28 Feb. 2022) https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening (consulted on 23 Feb. 2023)

[31] International Criminal Court, Ukraine https://www.icc-cpi.int/ukraine

Le Monde, « Guerre en Ukraine : la Cour pénale internationale s’apprête à enquêter sur les crimes commis sur le terrain » (last update 5 March 2022) https://www.lemonde.fr/international/article/2022/02/28/l-ukraine-saisi-la-cour-internationale-de-justice_6115558_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220301-%5bzone_edito_1_titre_4%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[32] Eurojust, “ICC participates in joint investigation team supported by Eurojust on alleged core international crimes in Ukraine” (25 April 2022) (https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-international-crimes (consulted on 27 Feb. 2023)

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A month ago, on December 30th, 2022, the General Assembly of the United Nations (UN) adopted a resolution asking the International Court of Justice (the ICJ) to give an advisory opinion on the impact of the Israeli practices on human rights in the occupied Palestinian territories (OPT).

This raises a few questions:

– What are the UN and what competence does they have?

– What is the jurisdiction of the International Court of Justice (ICJ)?

– What is the background of the Israeli occupation of the OPT?

– Why does the UN ask for an advisory opinion now? Has the context changed? What could be its impact?

For answers to the first two questions, check out this article on international institutions, even though a few aspects may be mentioned here.

Read this article to know more about the Israeli occupation of the OPT.

Israeli occupation – background

A little bit of history first…

The creation of the State of Israel has been evoked in 1917, in the Balfour Declaration, stating the British support to “the establishment in Palestine of a national home for the Jewish people.” This issue stayed in the hand of the United Kingdom until the 1940s, with a British mandate to provide administrative guidance for the transition to full independence, but it did not achieve his goal.

In 1947, 30 years after the Balfour Declaration, and after the Second World War, the UN General Assembly adopted resolution 181 (II), establishing a partition plan for the establishment of Israel on 56 per cent of the Palestinian territory. The State of Israel is established a year later, in 1948, but in violation of the 1947 partition plan, leading the displacement of thousands of Palestinians.

Since 1947, Israel has been taking more and more of the Palestinian territory, by the use of force and creating new conflicts. In 1967, during the “six days war”, Israel invaded part of the remaining Palestinian territory, leading to more displacements.

The maps below show the partition of Israel and Palestine as well as which parts of Palestine are under Israeli control, Palestinian control, or mixed control.

Violations of International Law, International Human Rights Law, and International Humanitarian Law (IHL)

The violations committed by Israel on the Palestinian territory and against Palestinians are still ongoing, including violence, discrimination, special treatments, etc. See the UN news for information : https://news.un.org/en/search/palestine

Israel violates

• International Law as the State of Israel is part of the international community and is subject to customary international law and has obligations under the treaties and instruments it ratified;
• International Human Rights Law is a special part of International Law dealing with duties States have to uphold and protect human rights;
• International Humanitarian Law (IHL) as Israel is an occupying force in Palestine, violation the laws of war. IHL applies to situations of conflicts.

If you would like to know more about human rights and humanitarian law, click here; about international law, click here.

Here are a few violations committed by Israel (and the related instrument)

• Self-determination (UN Charter)
• Occupying force > violation of IHL (Geneva Conventions)
• Right to life (International Covenant on Civil and Political Rights)
• Torture, mistreatments (Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)
• Right to education (Convention on the Rights of the Child)
• Discriminations (International Convention on the Elimination of All Forms of Racial Discrimination)

International reactions

If Israel has been violating Palestinian rights for over 70 years, what has been the reaction of the international community to these blatant violations of international law?

Since 1947, the UN has repeatedly taken position against the occupation of Palestine and for the respect of the rights of the Palestinian people:

• UN General Assembly, resolution 194 (1948): right to return home and right for a compensation. Adopted after the 1947 invasion, this is not respected by Israel.
• UN Security Council, resolution 242 (1967): right of an independent State without interference and with defined borders in which Palestinians will live in dignity. The UN reaffirms this right after the Six days war.
• UN General Assembly, resolution 3236 (1974): reaffirms the “inalienable right” of return of Palestinian refugees from both the 1948 and 1967 hostilities.
• N Security Council, resolution 1397 (2002) : reaffirms the vision of a region where two States would live side by side within secure and recognised borders.

In addition, several mechanisms or entities have been created by the UN to deal with this issue:

• UN General Assembly, resolution 3376 (1975) established the Committee on the Inalienable Rights of the Palestinian People;
• An independent, international commission of inquiry with a mandate to investigate in the Occupied Palestinian Territory and in Israel all alleged violations of IHL and of international human rights law leading up to and since 13 April 2021 has been created by UN Human Rights Council resolution A/HRC/RES/S-30/1(2021);
• Moreover, the UN Human Rights Council, which mandate is to monitor and review the UN Member States’ respect of human rights, follow a 10 items Agenda, one of these idem focusing solely on the OPT issue. This is the only country issue that is permanently discussed by the Human Rights Council, at each session.

Attempts to resolve the conflict have been initiated and are still ongoing, giving rise to several agreements which however have not had the expected effects:

• 1993 Declaration of Principles on Interim Self-Government Arrangements (Oslo I).
• 1997 Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip (Oslo II).

Activities of the international jurisdictions

The International Criminal Court (ICC) opened, on March 3rd, 2021, an investigation into the Situation in the State of Palestine since 2014.

To know more, check out this page: https://www.icc-cpi.int/palestine

The International Court of Justice (ICJ) gave another advisory opinion in 2004, at the request once again of the UN General Assembly, regarding the legality of the construction, by Israel, of a wall surrounding the OPT. The opinion recognised the illegality of this construction and the violation, inter alia, of the 4th Geneva Convention (IHL), the 1907 Hague Conventions (law of war), and both 1976 International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights.

See Legal consequences of the construction of a wall in the occupied Palestinian territory, Advisory opinion, July 9th, 2004

The UN General Assembly has requested an advisory opinion from the ICJ, for the second time regarding the situation in the OPT, on December 30th 2022 through resolution 77/247 “Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem”.

Why this new request?

Over the last few years, violations of human rights and of humanitarian law (since it is a state of occupation, condemned under international humanitarian law), have significantly increased, including building demolitions that impact the rights to housing, to education, and to healthcare. It is in light of these continuing and growing violations that the General Assembly adopted resolution 77/247.

Reminding the State of Israel of international law principles and previous UN resolutions, the General Assembly stresses, for pages, its concerns, and demands Israel to respect its duties under international law and the international community to show solidarity with the Palestinian people. It ends the resolution by requesting an advisory opinion from the ICJ on the rules and principles of international law relating to:

(a) […] the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related
discriminatory legislation and measures?
(b) […] the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?

At present, the ICJ accepted the request. To follow with the process, check out this link.

Limits: non-binding instruments

Not all UN resolution have a binding nature (see https://ask.un.org/faq/15010) and the advisory opinions of the International Court of Justice are solely opinions and do not bind States.

These international actions bring light to issues and violations and call the international community to act. Due to their non-binding nature, do not “have” to be respect and followed by States but the advisory opinion will give greater weight to the pressures put on Israel to acknowledge its responsibility for the violations and to remedy them. The conclusions stated on the opinion may also be useful for the ongoing investigation of the International Criminal Court.

“Despite having no binding force, the Court’s advisory opinions nevertheless carry great legal weight and moral authority. They are often an instrument of preventive diplomacy and help to keep the peace. In their own way, advisory opinions also contribute to the clarification and development of international law and thereby to the strengthening of peaceful relations between States.”

Sources:

History https://www.un.org/unispal/history/

On Palestine and the UN:

• https://palestine.un.org/en/about/about-the-un
• https://www.un.org/unispal/fr/

For information on Palestine https://news.un.org/en/search/palestine

For information on the Committee on the Inalienable Rights of the Palestinian People

https://press.un.org/en/committee-inalienable-rights-palestinian-people

To learn more about Israeli violations:

• https://www.amnesty.org/fr/location/middle-east-and-north-africa/israel-and-occupied-palestinian-territories/report-israel-and-occupied-palestinian-territories/
• https://www.hrw.org/middle-east/north-africa/israel/palestine

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A first – and main – distinction between human rights and humanitarian law is:

human rights apply both in peace and war time
humanitarian law applies only in war time (armed conflict).

I will give a little more detail below, first on human rights – and international human rights law; then on international humanitarian law.

1. What are Human Rights?

Human rights (HR) are rights you have for the sole reason you are a human being. No one gives them to you; you just have them no matter what. One of the main human rights is the right to live. But I’m sure you also heard of the right not to be subjected to cruel, inhuman or degrading treatments, or to torture.

While these rights are imprescriptible and inalienable in principle, in reality there is still much progress to be made to ensure their respect and the accountability of those committing human rights abuses.

In that aim, has emerged an international human rights law which codifies such human rights and which goal is to ensure their respect.

The most well-known instrument is the 1948 Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly through resolution 217 A, which lists 30 rights, including:

Rights linked to the due process of law, article 6-11:

All are equal before the law and are entitled without any discrimination to equal protection of the law. Article 7
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 8

Privacy and freedom of movement, article 12-14:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. Article 12
Everyone has the right to seek and to enjoy in other countries asylum from persecution. Article 14

Non-discrimination and social, economic and cultural rights, article 16-30:

Everyone has the right to own property alone as well as in association with others. Article 17
Everyone has the right to freedom of thought, conscience and religion. Article 18
Everyone has the right to freedom of opinion and expression. Article 19
Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. Article 23
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. Article 24
Everyone has the right to education. Article 26
Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. Article 27

The 1948 UDHR, the 1966 International Covenant on Civil and Political Rights (ICCPR) and its two Optional Protocols, and the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) form what we call the International Bill of Human Rights.

The adoption of such instruments, by States, bounds them to respect human rights.

The UN created monitoring mechanisms, such as the UN Human Rights Committee (for the respect of the ICCPR), the Committee on Economic, Social and Cultural Rights (for the ICESCR), but also mandates of special rapporteurs on specific topics, such as torture and arbitrary detention.

Human rights instruments exist at the regional level (such as the European Convention of Human Rights) and at the national level (for example included in the preamble of the French Constitution) as well.

Check out this article by the Council of Europe to learn more about the evolution of human rights and the different generations of rights!

2. What is International Humanitarian Law?

International humanitarian law (IHL) regulates war; prescribing rules to be followed by warring countries. Its aim is to limit the effect of the war. Thus, while human rights law aims at protecting civilians from abuses, humanitarian law aims at giving obligations to warring parties, applying between them.

IHL is part of international law, and is applicable only in situations of armed conflict. Mostly customary, IHL has been codified in the four 1949 Geneva Conventions and their three 1977 Protocols:

The first Geneva Convention protects wounded and sick soldiers on land during war.
The second Geneva Convention protects wounded, sick and shipwrecked military personnel at sea during war.
The third Geneva Convention applies to prisoners of war.
The fourth Geneva Convention affords protection to civilians, including in occupied territory.

The additional protocols add to all four conventions:
Additional Protocol I relates to the protection of victims of international armed conflicts.
Additional Protocol II relates to the protection of victims of non-international armed conflicts.
Additional Protocol III relates to the adoption of an additional distinctive emblem.

There is also an important work done by the International Committee of the Red Cross (ICRC) in identifying customary humanitarian law and interpreting it. You can check out the Red Cross’ factsheet on IHL here.

Rules and principles

The main rule of IHL is that sick or wounded members of armed forces should always be protected and treated humanely. IHL also states four core principles:

• The principle of military necessity
  Only military objectives can be attacked. Any damage which does not bring a military advantage must be prohibited, since the objective should be to weaken the armed forces of the enemy.

• The principle of proportionality
  Even military objectives may not be subject to unlimited and uncontrolled attack, as injury and damage disproportionate to military advantage are also prohibited.

• Principle of discrimination or distinction
  Warring parties must always distinguish between combatants, civilian objects and military objectives. They must only attack military objectives and armed forces.

• Principle of humanity
  Warring parties must not cause unnecessary suffering, even to members of armed forces and even in cases not expressly provided for in IHL.

Application of IHL

• It applies between the warring states even if human rights law and other international instruments do not apply – meaning the states do not have to be party to a specific instrument for IHL to apply.
• IHL starts being applicable at the beginning of the armed conflict but does not stop at the end of the conflict – it will stop only when the territory occupied is no longer occupied and when all prisoners, if any, are set free.
• It applies in the whole territory of the warring state, even if the armed conflict takes place in only a small part of its territory.

I hope this article helped you understand the difference between human rights law and humanitarian law as well as their objectives! You can always reach out through the contact form if you have any questions.

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International bodies

Supra-national bodies that can have general objectives (such as the UN) or specific ones (such as the International Criminal Court) but they aim to implement these at the global level and to have a global impact.

International court of justice (ICJ)

Based in: The Hague (Netherlands).

​Establishment: It was established in June 1945 by the Charter of the United Nations and began work in April 1946. The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN).

Mission: The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

Composition: The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English and French.

International Criminal Court (ICC)

Located in: The Hague (Netherlands).

​Establishment: At the 1998 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. Its establishment has been codified into the Rome Statute which entered into force in 2002.

Mission: The Court is participating in a global fight to end impunity, and through international criminal justice, the Court aims to hold those responsible accountable for their crimes and to help prevent these crimes from happening again.

​​The Court cannot reach these goals alone. As a court of last resort, it seeks to complement, not replace, national Courts. Governed by an international treaty called the Rome Statute, the ICC is the world’s first permanent international criminal court.

The International Criminal Court (ICC) investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. ^{_{(click here to learn more about such crimes).}}

Composition: 18 judges.

The International Criminal Police Organization (INTERPOL)

Based in: Lyon (France).

​Establishment: The International Criminal Police Commission was created in 1923, and became the International Criminal Police Organization-INTERPOL in 1956.

Mission:  We have 195 member countries, and we help police in all of them to work together to make the world a safer place. To do this, we enable them to share and access data on crimes and criminals, and we offer a range of technical and operational support.

The General Secretariat provides a range of expertise and services to our member countries. This expertise supports national efforts in combating crimes across three global areas we consider the most pressing today; terrorism, cybercrime and organized crime.

Composition: INTERPOL has 195 member countries, making us the world’s largest police organization. They work together and with the General Secretariat to share data related to police investigations.

Each country hosts an INTERPOL National Central Bureau (NCB), which links national police with our global network. 

Countries come together at the annual General Assembly to decide policy, working methods, finances and activities. In addition, heads of NCB meet annually at a conference to share experiences.

United Nations (UN)

Based in: New-York (USA); European headquarter in Geneva (Switzerland).

​Establishment: In 1945 at the United Nations Conference on International Organization in San Francisco (USA).

Mission: It is a place where all the world’s nations can gather together, discuss common problems, and find shared solutions that benefit all of humanity.

Composition: Currently made up of 193 Member States, the UN and its work are guided by the purposes and principles contained in its founding Charter.

The UN is part of a wider “UN system” made of many institutions, funds, specialized agencies… You can find a list here.

One important entity, with regard to human rights, is the Office of the High Commissioner for Human Rights (OHCHR).

Office of the High Commissioner for Human Rights (OHCHR)

Based in: Geneva (Switzerland).

​Establishment: The UN General Assembly established The Office of the High Commissioner for Human Rights in December 1993 through its resolution 48/141 which also details its mandate.

Mission:

• Promote and protect all human rights
• Help empower people
• Assist Governments
• Inject a human rights perspective into all UN programmes

Composition:

Charter-based bodies

• Human Rights Council
• Universal Periodic Review
• Commission on Human Rights (replaced by the Human Rights Council)
• Special Procedures of the Human Rights Council
• Human Rights Council Complaint Procedure

Treaty-based bodies

There are ten human rights treaty bodies that monitor implementation of the core international human rights treaties:

• Committee on the Elimination of Racial Discrimination (CERD)
• Committee on Economic, Social and Cultural Rights (CESCR)
• Human Rights Committee (CCPR)
• Committee on the Elimination of Discrimination against Women (CEDAW)
• Committee against Torture (CAT)
• Committee on the Rights of the Child (CRC)
• Committee on Migrant Workers (CMW)
• Subcommittee on Prevention of Torture (SPT)
• Committee on the Rights of Persons with Disabilities (CRPD)
• Committee on Enforced Disappearances (CED)

Regional bodies

Regional bodies can have global of specific goals, and are supra-national, just as international bodies have, but their application will be geographically limited (for example, only countries located in Europe can join the European Union).

African level

African Union (AU)

Based in: Addis Ababa (Ethiopia)

​Establishment: It was officially launched in 2002 as a successor to the Organisation of African Unity (OAU, 1963-1999).

The Constitutive Act of the African Union and the Protocol on Amendments to the Constitutive Act of the African Union lay out the aims of the AU which are, inter alia:

• Achieve greater unity and solidarity between African countries and theiro people
• Promote peace, security, and stability on the continent;
• Promote democratic principles and institutions, popular participation and good governance;
• Promote and protect human and peoples’ rights in accordance with the African Charter on Human and Peoples’ Rights and other relevant human rights instruments;
• Promote sustainable development at the economic, social and cultural levels as well as the integration of African economies;
• Promote cooperation in all fields of human activity to raise the living standards of African peoples;
• Ensure the effective participation of women in decision-making, particularly in the political, economic and socio-cultural areas;
• Develop and promote common policies on trade, defence and foreign relations to ensure the defence of the Continent and the strengthening of its negotiating positions;
• Invite and encourage the full participation of the African Diaspora as an important part of our Continent, in the building of the African Union.

Composition: The African Union (AU) is a continental body consisting of the 55 member states that make up the countries of the African Continent.

The work of the AU is implemented through several principal decision making organs: The Assembly of Heads of State and Government, the Executive Council, the Permanent Representatives Committee (PRC), Specialised Technical Committees (STCs), the Peace and Security Council and The African Union Commission. 

Organs that handle judicial and legal matters as well as human rights issues include: African Commission on Human and Peoples’ Rights (ACHPR), African Court on Human and Peoples’ Rights (AfCHPR), AU Commission on International Law (AUCIL), AU Advisory Board on Corruption (AUABC) and the African Committee of Experts on the Rights and Welfare of the Child. The AU is also working towards the establishment of continental financial institutions (The African Central Bank, The African Investment Bank and the African Monetary Fund)

The Regional Economic Communities (RECs) and the African Peer Review Mechanism are also key bodies that that constitute the structure of the African Union.

American level

Organization of American States (OAS)

Based in: Washington D.C. (USA).

​Establishment: The OAS came into being in 1948 with the signing in Bogotá, Colombia, of the Charter of the OAS, which entered into force in December 1951.

Mission: The Organization was established in order to achieve among its member states—as stipulated in Article 1 of the Charter—”an order of peace and justice, to promote their solidarity, to strengthen their collaboration, and to defend their sovereignty, their territorial integrity, and their independence.”

Composition: Today, the OAS brings together all 35 independent states of the Americas and constitutes the main political, juridical, and social governmental forum in the Hemisphere. In addition, it has granted permanent observer status to 69 states, as well as to the European Union (EU).

The OAS has created the Inter-American Court and Commission on Human Rights.

Inter-American Commission on Human Rights (IACHR)

Based in: Washington D.C. (USA).

Establishment: Created by the OAS in 1959.

Mission: The IACHR is a principal and autonomous organ of the Organization of American States (“OAS”) whose mission is to promote and protect human rights in the American hemisphere. 

The Charter establishes the Inter-American Commission on Human Rights (IACHR) as one of the principal organs of the OAS whose function is to promote the observance and protection of human rights and to serve as a consultative organ of the Organization in these matters.

The work of the IACHR rests on three main pillars:

• the individual petition system;
• monitoring of the human rights situation in the Member States, and
• the attention devoted to priority thematic areas.

Composition:  The Commission shall be composed of seven members, who shall be persons of high moral character and recognized competence in the field of human rights, elected in a personal capacity by the OAS General Assembly from a list of candidates proposed by the governments of the Member States.

Inter-American Court on Human Rights

Based in: San José (Costa Rica).

​Establishment: In the ​1948 OAS charter; it entered into force in 1979.

Mission: The Inter-American Court exercises a contentious function, in which it resolves contentious cases and supervises judgments; an advisory function; and a function wherein it can order provisional measures. It is an autonomous legal institution whose objective is to interpret and apply the American Convention.

Composition: The Court is composed of seven Judges, nationals of the member States of the OAS. They serve in their personal capacity and are elected by the General Assembly and are appointed for a 4-year period, renewable once.

Asian level

Association of South-East Asian Nations (ASEAN)

Based in: Jakarta (Indonesia).

​Establishment: 8 August 1967 in Bangkok, Thailand, with the signing of the ASEAN Declaration (Bangkok Declaration).

Mission: As set out in the ASEAN Declaration, the aims and purposes of ASEAN are:

• accelerate the economic growth, social progress and cultural development in the region through joint endeavours in the spirit of equality and partnership in order to strengthen the foundation for a prosperous and peaceful community of Southeast Asian Nations;
• promote regional peace and stability through abiding respect for justice and the rule of law in the relationship among countries of the region and adherence to the principles of the United Nations Charter;
• promote active collaboration and mutual assistance on matters of common interest in the economic, social, cultural, technical, scientific and administrative fields;
• provide assistance to each other in the form of training and research facilities in the educational, professional, technical and administrative spheres;
• collaborate more effectively to encourage further growth in the agriculture and industry, and trade sectors. This includes improving transportation and communications facilities and conducting studies on international commodity trade with the overarching goal of raising the living standards of ASEAN peoples;
• promote Southeast Asian studies; and
• maintain close and beneficial cooperation with existing international and regional organisations with similar aims and purposes, and explore all avenues for even closer cooperation among themselves.

Composition: The Founding Fathers of ASEAN, namely Indonesia, Malaysia, Philippines, Singapore and Thailand. Brunei Darussalam then joined on 7 January 1984, Viet Nam on 28 July 1995, Lao PDR and Myanmar on 23 July 1997, and Cambodia on 30 April 1999, making up what is today the ten Member States of ASEAN.

European level

There are two main organisation in Europe, each with its own Court, and they are often mixed up. This is the European Council and the European Union, while they actually differ in terms of objectives and members. A quick difference before developing more each institution:

• The European Union (EU) is a mostly economic cooperation;
• The Council of Europe (CoE) is mostly active in the areas of human rights and in strengthening democracy.

See the CoE’s page “Do not get confused”: https://www.coe.int/en/web/about-us/do-not-get-confused

Council of Europe (CoE)

Based in: Strasbourg (France).

​Establishment: Signing of the Treaty creating the CoE in 1949.

Mission: This is a cooperation organisation.

Composition: The aim of the CoE is to integrate all European States. It has currently 47 member States out of 51 European States.

To integrate the CoE, the State must be a European State and share the same values regarding the rule of law, democracy and human rights.

Organs of the CoE:

• Committee of Ministers: This is the Council’s decision-making body and is made up of the ministers of foreign affairs of each member state or their permanent diplomatic representatives in Strasbourg. The Committee of Ministers decides Council of Europe policy and approves its budget and programme of activities.

• Parliamentary Assembly (PACE): The Parliamentary Assembly consists of 324 members of parliament from the 47 member states; the Assembly elects the Secretary General, the Human Rights Commissioner and the judges to the European Court of Human Rights; it provides a democratic forum for debate and monitors elections; its committees play an important role in examining current issues

• Congress of Local and Regional Authorities: The Congress of Local and Regional Authorities is responsible for strengthening local and regional democracy in its 47 member states. Composed of two chambers – the Chamber of Local Authorities and the Chamber of Regions – and three committees, it brings together 648 elected officials representing more than 150 000 local and regional authorities.

• Commissioner for Human Rights: The Human Rights Commissioner independently addresses and brings attention to human rights violations.

• The Secretariat.

The CoE created the European Court of Human Rights.

European Court of Human Rights (ECHR)

*Briefs and information on the Court available at: https://www.echr.coe.int/Pages/home.aspx?p=court/doc_info&c=

Based in: Strasbourg (France).

​Establishment: 1959 by the Council of Europe.

Mission: It is the only truly judicial organ established by the European Convention on Human Rights and ensures, in the last instance, that contracting states observe their obligations under the Convention.

It rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights.

Composition: It is composed of one Judge for each State party to the Convention (currently 47).

European Union (EU)

Based in: The EU institutions are based in several European cities as follows:

• Brussels (Belgium): The European Parliament; the European Council/Council of the EU; the European Commission; the European External Action Service; the European Economic and Social Committee; the European Committee of the Regions; the European Data Protection Supervisor.
• Strasbourg (France): The European Parliament.
• Luxembourg (Luxembourg): The European Parliament; the Court of Justice of the European Union; the European Court of Auditors; the European Investment Bank.
• Frankfurt (Germany): The European Central Bank.

​Establishment: The European Union is a long-term construction based on the evolution of the European Economic Community, among others. We speak of “European Union” since the Treaty of Maastricht (1992).

[ A few milestones in the EU construction:

1951 Paris Treaty: Creation of the European Coal and Steel Community.

1957 Treaty of Rome: European Defense Community and European Atomic Energy Community (EurAtom).

1986 Single Act (revision of the Rome Treaty): Introduction of a political cooperation area.

1992 Maastricht Treaty: We now speak of European Union. The EU does not replace the above-mentioned Communities but integrate them as pillars: The community pillar is made up of the 3 communities, it is a supranational pillar characterized by the logic of integration; the CFSP – common foreign and security policy; JHA – justice and home affairs.

1997 Amsterdam Treaty: It expands the scope of the first pillar as well as the powers of the Court.

2000 Treaty of Nice: It strengthens the decision-making role of the Parliament.

2007 Treaty of Lisbon: It modernizes the institutions -the European Council and the European Central Bank become components of the EU; the Court of Justice of the European Communities becomes the Court of Justice of the European Union; refers to an EU Charter of Fundamental Rights; officially consecrates the legal personality of the EU; disappearance of the pillared structure. ]

Mission: It is an integration organisation.

Composition: The EU is currently made of 27 Member states.

To join the EU, the State must be a European country, have stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities; a functioning market economy and the capacity to cope with competition and market forces in the EU; the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union.

EU organs: The EU is both a supranational and international organisation, as shows its organs composition:

• The European Parliament: Elected, it has three functions: legislative, budgetary and oversight.
• The European Council: Composed of Member states’ representatives, it has three functions, political, judicial (through arbitration), and legal (through nominations). The European Council is the EU institution that defines the general political direction and priorities of the European Union. Not to be confused with the Council of Europe!
• The Council or Council of the European Union: Composed of Member states’ representatives, it negotiates and adopts EU laws; coordinates member states’ policies; develops the EU’s common foreign and security policy; concludes international agreements; and adopts the EU budget.
• The European Commission: Created by the Rome Treaty, it is composed by commissioners. It has an initiative power in decision-making procedures, an executive power and a monitoring power.
• The Court of Justice of the EU (read more below): Monitors the application of the EU law.

Court of Justice of the European Union

*A booklet of information is available https://curia.europa.eu/jcms/upload/docs/application/pdf/2020-05/cour_garante_qd-03-20-178-en-n.pdf

Based in: Luxembourg (Luxembourg).

​Establishment: 1952.

Mission: To ensure that “the law is observed” “in the interpretation and application” of the Treaties.

As part of that mission, the Court of Justice of the European Union:

• reviews the legality of the acts of the institutions of the European Union,
• ensures that the Member States comply with obligations under the Treaties, and
• interprets European Union law at the request of the national courts and tribunals.

Note: The Court of Justice of the European Union consists of two courts: the Court of Justice and the General Court (created in 1988). The Civil Service Tribunal, established in 2004, ceased to operate on 1 September 2016 after its jurisdiction was transferred to the General Court in the context of the reform of the European Union’s judicial structure.

Composition: One judge for each member state (currently 27 judges) two of which are elected as president and vice president, and 11 advocate general.

Middle East and North Africa (MENA)

The Arab League

Based in: Cairo (Egypt).

​Establishment: 2 March 1945. On the same day, the Charter of the Arab States has been adopted.

Mission: Cooperation between the Arab states and the development.

Composition: 22 Member states, Egypt, Iraq, Saudi Arabia, Syria, Lebanon, Jordan, Yemen, Morocco, Tunisia, Algeria, Mauritania, Libya, Sudan, Somalia, Djibouti, the Comoros, Oman, United Arab Emirates, Bahrain, Kuwait, Qatar, Palestine.

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