Opinion It won’t be easy to bring Moscow to book over the Ukraine invasion

Russia’s culpability in war crimes is not new. The country’s forces executed 60 civilians in Chechnya in 2000. In 2015, Russia used cluster bombs in residential areas of Syria. The same year, it vetoed a UN Security Council resolution to recognise the 1995 Srebrenica massacre of 8,000 Muslims by Bosnian Serbs as s genocide.

In Ukraine, Russian missiles, artillery shelling and airstrikes have hit hospitals, schools, nurseries and residential buildings, violating Article 8 of the Rome Statute of the International Criminal Court 1998, and resulted in more than 1,600 deaths and injuries to more than 2,000 people. Allegations that Russian forces launched a chemical attack in Mariupol, massacred civilians in Bucha and killed, tortured, and raped civilians and looted their property in other places in Ukraine are being probed. Such acts come under “crimes against humanity” as defined by Article 7 of the Rome Statute. It is no surprise that the UN General Assembly adopted a resolution to suspend Russia from the Human Rights Council.

However, the path to bringing Russia to justice is exceedingly difficult. The International Criminal Court (ICC) prosecutes individuals accused of war crimes and genocide. But the ICC lacks an enforcement body — like a police force — and relies on cooperation between member countries to make arrests and extraditions. But Russia — like the US and India — is not an ICC member country. The court has no jurisdiction over Moscow.

Similarly, the International Court of Justice will be unable to hold Russia accountable because of Moscow’s veto power in the UNSC.

An approach outside of the UN, like establishing an ad hoc tribunal — like the Nuremberg war crime trials — will raise legitimacy issues. It is also unlikely that Putin would be held accountable by the European Court of Human Rights.

The US has announced the freezing of assets of Russia’s largest financial institution, Sberbank, as well as those of the country‘s largest private bank, Alfa Bank, and the European Union (EU) adopted a fifth package of restrictive measures banning the import of all forms of Russian coal (fully effective from August), caviar, wood and spirits. However, the European sanctions will not apply to the transportation and financing of trade in oil and gas. In fact, since the war started the EU has paid Russia €35 billion for energy imports. Revenue from oil and gas exports accounts for 39 per cent of the Russian federal budget revenue.

Russia is Europe’s key supplier of natural gas and crude oil — it accounts for 45 per cent and 27 per cent, respectively, of the region’s requirement for the two commodities. This dependence gives Putin a huge bargaining chip. And, Russia is being helped by Switzerland, the world’s largest commodity trading hub, which is neither an EU member nor a part of the European Economic Area.

Following criticism from the EU, the Swiss Federal Council has, by and large, adopted the EU measures against Russia. But as the EU is yet to announce sanctions on Russian oil and gas, Switzerland is not required to impose sanctions under its Federal Embargo Act. Swiss trading houses continue to buy Russian oil. Reports show that Swiss commodity traders were the largest buyers of Russian oil in February and March and approximately 4 million Swiss francs flow daily into Russia from Switzerland as a result of this oil and gas trade.

Due to weak regulation, the details of these trades are hard to uncover. Commodity trade is an example of transit trade. It is only the money that flows through Switzerland, the raw materials never touch Swiss territory. Unless Switzerland strengthens its regulation around commodity trading, its humanitarian aid, and tweets in support of Ukraine have no meaning.

At the same time, Russia’s future appears grim. To an extent, it has managed to find new buyers — like India and China — for its oil at discounted prices. However, it is unlikely that both countries will ditch their Middle-East suppliers completely. So, if Europe drops it as a supplier, Russia will find it exceedingly difficult to find replacements. To find new natural gas customers (like India, Pakistan and China), Russia will require massive investments in pipelines.

Though Russia is using loopholes in international treaties and its leverage over Europe to dictate terms, its triumphalism is likely to be short-lived. The EU’s 10-point plan to reduce Europe’s dependence on Russian natural gas will significantly impact Russia in the long term. Even though sanctions appear to be circumvented, the Russian economy is hurting and Moscow has been pushed towards a selective default on its sovereign debt.

With rising inflation and economic hardship looming over Russian citizens, the possibility of regime change in Moscow cannot be ruled out.

This column first appeared in the print edition on April 18, 2022 under the title ‘Holding Moscow to account’. Mustafa is vice-chancellor and Leo is assistant professor at NALSAR University of Law, Hyderabad