【Article by International College of Innovation】
The International College of Innovation (ICI) on 12 May 2022 held a public event entitled: “‘In Times of War, the Law Falls Silent’? How International Law Prevents Mass Atrocities and Brings Justice to the Gravest Crimes”. The speaker was Associate Professor Kevin Chang, who recently joined NCCU after two decades of experience serving as a legal and policy expert with the United Nations, the International Committee of the Red Cross and the Australian Government. He is also an Honorary Associate in Peace and Conflict Studies at the University of Sydney, and a Lawyer of the Supreme Court of the Australian Capital Territory. The event was opened by ICI Dean Tu Wen-Ling and emceed by Assistant Professor Chen Po-Liang.

Professor Chang’s presentation focused on how international law has proven to be effective and resilient despite its limitations, as exemplified by Russia’s ongoing war against Ukraine. In invoking the maxim by Roman stateman Cicero, Prof. Chang opened with a dose of realism about the limits of international law – that despite prohibiting aggression against states and placing strict limits on the conduct of warfare, international law has not eliminated wars nor prevented atrocities from taking place. However, Prof. Chang asserted that even in these dark times – as Russia commits unspeakable crimes in Ukraine – we are nevertheless relying on international law to limit the behaviour of parties, and importantly, to prepare for justice and accountability.

Even though Russia’s war on Ukraine is the biggest crisis faced by Europe since 1945, Prof. Chang recalled that the past seven decades have been the most peaceful time on earth. Throughout earlier history, states have habitually used armed force as an instrument of statecraft to acquire territory and to terrorise, and at times exterminate, other populations. The world order established after the Second World War is underpinned by the general prohibition against using force on other states, which is the cornerstone rule of the UN Charter that has dramatically reduced the number of interstate armed conflicts. This also makes Russia’s occupation and annexation of Ukraine so extraordinary, as few states in the modern era have waged war to acquire territory by force. It is more remarkable that this cornerstone rule of international law has been violated by a permanent member of the UN, charged with the highest responsibility to maintain international peace and security.

Prof. Chang explained that even though Russia’s invasion of Ukraine constitutes a clear and flagrant breach of the laws governing the use of force, “Putin’s reasons for invading Ukraine, however factually unfounded, still seeks to justify Russia’s actions through international law”. Prof. Chang then described the various ways international law is also playing a key role on the battlefield. “Whereas we are abhorred by images of war crimes and outraged by what appears to be crimes against humanity and even genocide taking place, international humanitarian law, international criminal law and international human rights law are working together regulate conduct on the battlefield, treatment of civilians, and preparing for accountability concerning the atrocities committed.” Prof. Chang noted that the legal regime governing warfare not merely concerns Russia as the invading force, but applies equally to Ukraine and all other forces taking part in hostilities.

“International law therefore has been a force in both justifying and opposing the war, a force in regulating the conduct of warfare, and an instrument for holding together a coalition of states that seek to protect international law”, he said.

On the issue of criminal accountability, Prof. Chang recalled that the Nuremberg and Tokyo tribunals were the world’s first tribunals that sought to hold individuals to account for war crimes. Now with a permanent International Criminal Court, alongside Ukraine’s national criminal jurisdiction, and numerous states applying universal jurisdiction, there are now multiple processes underway to bring accountability to the most serious crimes committed on the battlefield. Prof. Chang discussed the complementarity principle under international criminal law, such that Ukraine and Russia have the first and primary responsibility to prosecute crimes through their national jurisdictions. He recalled that that the current armed conflict in Ukraine dates back to 2014, and informed the audience that there are now more than 10,000 investigations within Ukraine’s domestic criminal jurisdiction. Meanwhile, 15 states in Europe are exercising universal jurisdiction. The ICC has also begun to collect evidence both inside Ukraine and in neighbouring countries, Prof. Chang detailed.

Prof. Chang recalled that ten years ago, few in the world would have imagined a war between Russia and Ukraine, and a potential nuclear war between Russia, Europe and the United States, which is now within the realm of possibilities. He urged for greater discussion and understanding of the laws governing armed conflict and international criminal justice in Taiwan, as they concern Taiwan’s international responsibility as a global citizen, and are vital to Taiwan’s national interest.

In conclusion, Prof. Chang noted that while international justice is imperfect and cannot always prevent wars and stop atrocities, it was also once inconceivable that the leaders and warlords of Yugoslavia, Rwanda, Cambodia, Sierra Leone, Liberia and Sudan would ever face international justice. “While the arc of history turns slowly and there are too many setbacks, it eventually bends toward justice”, he concludes.