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Jason McCue

Partner, Mccue & Partners

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What is fundamentally missing in the sphere of justice is the power and success of the nuclear deterrent

Rome is burning: the need for a ‘nuclear’ justice deterrent

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Rome is burning: the need for a ‘nuclear’ justice deterrent

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Dr Jason McCue shares his views on the route to international peace and justice in the context of Russia’s invasion of Ukraine, the delivery of real reparations and the need for a ‘nuclear’ justice deterrent

Cicero reminds us that to ignore history is to live as a child. Our responses to burning issues of the day unfortunately are sometimes childish. The situation in Ukraine lacks viable international solutions. Not least because international community hegemony and its apparatus are lacking and not fit for purpose. Our cultural positioning focuses more on our differences rather than on our similarities, which only leads to entrenchment of the former. Polarised and broken ideals and institutions lead to childlike solutions that ignore the essential lessons and tenets of history.

The world today rhymes with Rome during its existential crisis in the last century BC. It was not civil war that killed the republic dream, but the cancer that developed during the events of the first century BC. The neglect and manipulation of its infrastructure, and the politisation of its ‘civilisation’ and ideals strangled the practical workings of the republic and ushered through a return to autocracy in 27 BC. The key is to always learn from history, rather than repeat its mistakes.

The similarities between the international community today – particularly the United Nations (UN) – and Rome’s republic are startling. Rome’s institutions were polarised between the aristocrats and the pedarii; each side growing more extreme. The senators and the institutions of Rome had become corrupted and moribund; years of neglect and self-interest was shaking the very foundations of the great republic ideal. The veto power of Rome’s Tribune members to block legislation is all too familiar. The UN’s silence underlies its inability to act due to the Tribune-like vetoes of the permanent members of the Security Council, of which Russia is one. The difficulties of the Roman courts to enforce judgments against Senate members cabals or beyond the walls of Rome, echoes the current international community’s difficulties in efficiently delivering justice against Russia and confiscating sanctioned Russian assets for Ukrainian reparations. Rome’s government was being suffocated by expanding globalisation, overindulgent democracy, and vetoes to the point where it barely existed between the constant twittering of the loudest, the flexing of the mightiest, and endless elections. 

The failings of the international community

Barack Obama’s commentary on America can equally relate to Rome, as well as the international community and its apparatus today: “the greatest threat to our democracy is not from any external enemy, but from within – the growing polarisation and division among our own citizens”. As old divisions fade based on political doctrines of East versus West, new, more complicated geopolitical lines are being drawn around the globe separating ‘democrats’ from ‘autocrats’ (developing through a Rus-Islamic-Han alliance). We can sit back and let it play out or we can seek to halt its inevitable catastrophe through looking to refocus, reform, and build on our similarities.

Ukraine deserves solid solutions; not to be put on the back burner of convenience. It is too convenient to tap dance around the underlying issues of the Ukrainian war rather than address them: autocratic aggression, UN vetoes, nuclear state strangleholds, and the use of asymmetrical economic warfare. The world cannot allow for the dangers of our fears and differences to constantly simmer in the background and to simply let them to boil over periodically.

Rather than extinguishing the fires of Ukraine, the international community hopes they will simply smoulder out through attrition. That appears easier than facing the stark realities of the underlying issues. But Ukrainians have admirably demonstrated they will never cease to defend their lands until the last person dies. And the Russian kleptocracy has savagely demonstrated it will never stop its aggression until it dies. We are heading for an enduring stalemate of misery and escalation beyond that current chess board unless a clever move is made.

The rule of law

When politics and international order are broken, innovative ideas and approaches must fix it. Such solutions will not be found in our differences but in our common self-interest. We will never agree on power, politics nor markets. The rule of law is the answer to the problems of Ukraine and to the subsidence in the foundations of international order. It is a common denominator among states, races, and religions. It unites the world; a need and desire for just and fair rules to govern relationships within our local and global communities. It’s an issue we can all agree on for without it, there is chaos.

Cicero also reminds us that “the rule of law is the supreme safeguard against tyranny” but that ‘laws are silent in times of war’. We simply cannot allow rule of law to be silent in this current war; if the laws can’t be heard, it is our job to amplify them. Justice is essential to sustainable peace and, in the current context, Ukrainian justice is two dimensional: accountability and responsibility to pay just reparations.

Our international order and its courts lack the ability to adequately provide such justice for Ukraine. The truth about the international justice system – as much as the UN – is that it just doesn’t have the bite it needs to be truly effective. International courts – creaking from decades of targeted bias, mismanagement, ineffectiveness, underperformance, and underfunding, complicated by the whim of states to join in or enforce its decisions – are not able to deliver this magnitude of justice. The International Court of Justice (ICJ) and the International Criminal Court (ICC) are capable of ruling on the liability of ‘example’ aggressors of international crimes to provide collective justice for the victims, but they lack the capacity and capability to prosecute all culprits, provide individualised justice, or provide a detailed judicial assessment of damages for the victim state, let alone all its people. The latter is key – and currently lacking in the international order – to foster a more lawful and compliant (with international law) confiscation of an aggressor’s sanctioned assets to pay for victims’ reparations. 

Reparations

Justice for Ukraine demands a special tribunal and for Russian assets to be confiscated, but Ukraine deserves a means to achieve this in a compliant fashion. We should neither be shoving squares into round holes nor enlarging existing holes that we will stumble into anon. Rule of law demands we produce a round peg that is it for purpose. Sure, we can try and create a bespoke ad hoc special tribunal or reparations commission for Ukraine, but it will inevitably lack the capability to deliver real reparations. South Africa’s Truth and Reconciliation Commission managed to pay only $3,600 to victims. Iraq’s commission – benefiting from the oil spoils of a dictator that was thoroughly defeated – managed to pay just $4,600 to victim families. Vietnam’s Agent Orange Central Payments Programme shockingly only paid $3-7 per month to victims. Ad hoc reparations commissions clearly will not properly compensate ordinary Ukrainians for their losses. 

Traditional international community approaches to reparations require some form of acquiescence from the paying party or rely on donations from third parties. The real politick of peace will inevitably further corrupt the capability of an ad hoc solution. Those that now shout loudest for confiscating sanctioned assets for Ukraine, will likely be the voices around a ceasefire that are heard to say Russia must not be overburdened by reparations (like Weimar Germany at the end of WW1), for the sake of a sustainable peace. With the international community having little cash spare to fund reparations, they have leaned towards seeking to confiscate sanctioned Russian assets for these purposes. While the morality and fairness of such is not in question, its international law and world order compliance is. Regardless that confiscation challenges the very methodology of a sanction’s regime, confiscation that dodges issues of sovereign immunity and without a competent courts assessment of liability and damages offends international law, and risks setting a precedent that can open the flood gates to tit for tat confiscations in the future.

A bespoke justice solution for Ukraine is perhaps not the answer in a world facing increasingly more acts of aggression and new lines of polarisation. International harmony between democrats and autocrats demands a new rule of law order and a suitably muscular institution to deal with and help prevent future acts of aggression. Democrats and autocrats can all agree that they want to get on with their lives, without aggressive interference from others. Yin and yang can work well together on this earth if a rule of law line is drawn on acts of aggression and flowing reparations when infringed. The answer to that may be a justice pact on aggression around an international tribunal that has the teeth to not only enforce it, but also to be feared.

The ‘nuclear’ justice deterrent

What is fundamentally missing in the sphere of justice is the power and success of the nuclear deterrent. A rule of law but a no less ‘nuclear’ deterrent towards acts of aggression. The ICC and ICJ may rule on aggression, but they clearly do not prevent or effectively deter aggression. Here, that ‘nuclear’ deterrent would be money or rather, atomic reparations: a detailed and actual-loss reparations assessment that would be recoverable following a judgement (of the ICJ, ICC or even a proposed crime of aggression tribunal) establishing an act of aggression. Wars are always about money, assets, or power (which is economic power today), so aggressors would think twice when it comes with a hefty real, burdensome, and deliverable price. A new tribunal should have specific jurisdiction and a justice deterrent that is as explosively fearsome as a nuclear bomb. Put simply, aggressors will pay their victims for the considerable damage caused by their acts of aggression. It’s an economic-driven solution, rather than a politically driven one. Recovery would be the actual damage, not the considerably lesser values within a negotiated peace process or reparations commission. 

This could be a permanent international peace and reparations tribunal (IPRT) with powers to confiscate the assets of an aggressor and give them to the victims. That justice deterrent can be laid out simply: any liability for an act of aggression across state borders that is unauthorised by the UN or its charter, will incur reparations. States signed up to the pact–tribunal could have the obligation and power under international law to confiscate public and private sector assets of the aggressor state within its jurisdiction – to meet judicially assessed awards by the tribunal – to compensate member state victims. Members would effectively waive sovereign immunity over its assets abroad when it commits an act of aggression. If this tribunal also had a dead man’s trigger of automatically (there would be no UN type vetoes) issuing sanctions in pact member states freezing the assets of any state aggressor, then aggressors would know such activity would almost certainly lead to their economic collapse. Such sanctioned assets would be ringfenced awaiting an IPRT assessment. Such a deterrent might prevent the next Ukraine from happening as it would not be worth Russia’s while. A kleptocracy does not survive if aggression loses it money.

While some will point out that the usual suspects will boycott the tribunal as they have done with the ICC, one might argue that such decisions are based on a self-interested calculation. The ‘nuclear’ justice deterrent value and the specificity of the tribunal are attractive and might readily outweigh any concerns, particularly by states that are not ordinarily inclined to engage in aggression abroad. Nuclear and non-nuclear states – rich or poor – might readily want to protect and insure against aggression through investing in justice deterrent protection. It’s cheaper than nuclear protection, arguably as effective, and who would protest against justice proliferation? 

The concept of the IPRT should be approached as a justice pact, akin to a NATO pact, in that membership can be fluid. It can start with a core and grow to include any state that agrees to abide by its rules. All members protect other members, and all members benefit from the ‘nuclear’ justice deterrent and fall out should they be attacked. If a member or non-member carries out an act of aggression against a member state, then members confiscate the offending state’s assets for the victim member. If you aggressively mess with a member in the gang, expect the impact of the justice bomb. If you are not in the gang, you don’t get its explosive capability, nor its ‘nuclear’ justice deterrent. Those who don’t join in don’t get its benefits until they do so.

Such a ‘nuclear’ justice deterrent can be quickly, efficiently, and economically created and does not require the genius, cost, or moral angst of Oppenheimer. An IPRT only requires one court room and a small permanent technical and administrative staff. Its essence is only to provide a judicial determination on damages for the victims – to compliantly enable sanctioned assets to be confiscated for such purposes. But there are those that would baulk at the cost and yet more infrastructure. A permanent tribunal for peace and reparations needs no more time nor money to set up than a one-off ad hoc justice tribunal or reparations commission for Ukraine. We must do the latter, so why not do the former. We must anticipate future wars and the need for more one-off tribunals. 

Conclusion

Ukraine must try every avenue for justice that is available but better for Ukraine to do so in a manner that creates a positive legacy for the world, rather than just for itself. A rule of law solution is as essential to the global all as much as it is to Ukraine and Russia. If the international order and its courts cannot sufficiently provide justice for Ukraine against Russia’s unconscionable act of aggression (which they empirically will not), then a permanent rather than an ad hoc structure should be created. Permanence has the added benefit of going someway to de-specificise and de-politicise the process. Taking reparations out of the current peace talks by placing it within a separate process, significantly increases the chance for peace. We must learn from history. Lethal deterrents work and ad hoc justice tribunals by their very nature are no deterrent at all.

In the interim, ordinary Ukrainian victims’ only option to recover their true damages against Russia, is to take to the domestic civil courts around the world. Such courts remain impervious and not vulnerable to the uncertainty of real politick. That is what www.payback4ukraine.org (P4U) is about and what it is trying to do. Until the international community sorts itself out through establishing something like an IPRT – that is devoid of vetoes, immunities, and politics – civil society must step up and fill some of the gaps. 

An IPRT is so clearly missing in the world that Cicero’s Senate would barely need to debate it. All that needs discussion is the detail and where it might sit. Would it be fitting in Nobel’s Norway or Mandela’s South Africa? Could it be small state Ireland’s destiny after its Troubles, or should it go to an Asian giant? Perhaps Ukraine deserves the prize. Perhaps it should be awarded to a state that can demonstrate a history of non-aggression and shares Cicero’s ideal of the rule of law. 

Dr Jason McCue is a senior partner at McCue Jury & Partners LLP and head of www.payback4ukraine.org
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