Stolen Childhoods: Russia’s Abduction of Ukrainian Children and the Case for Genocide

Stolen Childhoods: Russia’s Abduction of Ukrainian Children and the Case for Genocide

By: Dr. Gregory P. Noone and Kateryna Kyrychenko, PILPG, and Henry T. Scott, Dr. Andrea Eggenstein, Connor W. Reese, and Rafael Mozo Sierra, Milbank LLP

Imagine being a child torn from your home, your family, your language, and your identity — sent hundreds of miles away to a foreign country determined to erase who you are.

Since launching its full-scale invasion of Ukraine in 2022, the Russian state has forcibly taken thousands of Ukrainian children — orphans, those separated from parents during war, and children under state care — and relocated them to Russia. These children are not simply being “evacuated” for their safety. They are in fact being subjected to a systematic campaign of identity erasure, Russian adoption, and indoctrination.

This is obviously a war crime, and in all likelihood also meets the legal definition of genocide.

This blog explores the legal, moral, and human dimensions of Russia’s program of abducting Ukrainian children. Drawing on international law, tribunal precedent, and a growing body of evidence, we examine why the forced transfer and “Russification” of these children constitutes not only a violation of the Geneva Conventions — but potentially the gravest crime under international law: genocide.

Summary of Situation & Facts

Forcible transfer of Ukrainian children by Russia 

Since the beginning of Russia’s full-scale invasion of Ukraine in February 2022, the Russian government has transferred or abducted over one hundred thousand Ukrainian children to Russia by force and coercive measures, as reported by the US Government, the EU Parliament, and the UN High Commissioner for Human Rights. These forced transfers can be classified into three distinct categories: (i) transfer of children who have lost their parents either temporarily or permanently; (ii) transfer of children separated from their families at “filtration camps”; and (iii) transfer of children under institutional care.

What started in 2022 as a Russian program that was initially claimed to be aimed at fostering Ukrainian children with Russian families – at least, on the surface – rapidly evolved into an organized scheme for the permanent adoption or guardianship with Russian families. 

The Russification of children

Following detention at “filtration camps” where Russian officials screen ethnic background and political affiliation, certain children are transferred to Russian foster families or institutions, where they undergo an ideological re-education process. The Russian government has reportedly conducted this forced-transfers campaign with the aim of implementing a policy of Russification of the abducted children. 

Reports from international organizations and intelligence agencies have produced evidence that abducted children have been actively and systematically exposed, either at their Russian foster homes or at educational institutions, to Russian propaganda aimed at dissolving their Ukrainian identity. Russian officials have also mandated that the children attend pro-Russian festivities and Russian military schools. Russian foster families and officials have oftentimes disguised this re-education as psychological therapy. 

Several factors indicate that there is an active intent by the Russian government to erase the Ukrainian identity of the abducted children and to transform it into the Russian identity. In January 2024, Russian President Vladimir Putin signed a decree approving a fast-tracked procedure for the granting of Russian citizenship to recently deported Ukrainian children. As a further example, Russian high-ranking official Maria Lvova-Belova made public statements mentioning that, once the children were moved to Russia, they “drastically changed their anti-Russian ideas, as soon as they learned the Russian language and culture.”

The use of psychological manipulation and Russian propaganda by the foster families and the schooling system demonstrates that the intent is to not temporarily host Ukrainian children as war refugees, but to implement a state-led program to fully assimilate them into Russian culture and erase their original Ukrainian identity. 

Organized, systematic state-directed campaign

Evidence shows that this forced-transfers campaign is a fully organized, intentional, and systematic operation carried out by the Russian Federation with the aim of substantially altering local demographics in Russian-occupied territories in Ukraine and erasing Ukrainian identity. Russia’s system of coerced adoption and fostering has been ordered and facilitated by President Vladimir Putin and Russian officials, and it has involved the active collaboration of the State Duma, the Russian judiciary, and local officials in Russian-occupied territories.

The Legal Significance of the Child Transfers: From War Crimes to Genocide

Before addressing the legal classification of genocide, it is important to situate the forcible transfer of Ukrainian children within the broader framework of international criminal law. The Russian Federation’s actions during its ongoing aggression against Ukraine have resulted in a wide range of documented violations, including widespread physical and sexual attacks on civilians, torture, and the destruction of civilian infrastructure — many of which constitute war crimes and most likely crimes against humanity (see for instance the European Parliamentary Research Service’s February 2025 report or the March 2023 report from the Independent International Commission of Inquiry on Ukraine established by the UN Human Rights Council).  Consequently, in March of 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin and Maria Alekseyevna Lvova-Belova, Russian Presidential Commissioner for Children's Rights, who stand accused of the war crime of unlawful deportation of population (children) and that of unlawful transfer of population (children) from occupied areas of Ukraine to the Russian Federation. These developments underscore the international recognition of the illegality of Russia’s conduct with regard to Ukrainian children. Yet, the question remains whether the scale, coordination, and ideological nature of these actions — particularly the systemic erasure of Ukrainian identity through adoption, indoctrination, and identity obfuscation — may satisfy the criteria for a separate and more severe crime under international law: genocide.

What constitutes genocide?

The term “genocide” is often associated with the coordinated mass murder of ethnic, national, racial, or religious groups.  In fact, the literal meaning of the term [prefix from Greek “genos” (race or tribe) and suffix from Latin “cide” (from caedere, which means killing)], as coined by Polish lawyer Raphäel Lemkin in 1944, indeed evokes such connotation.  When the term “genocide” is referenced, one may immediately think of atrocities such as the campaign of ethnic extermination and collective punishment waged in Nazi Germany against, millions of Jews, Sinti, and Roma, the 1994 atrocities committed in Rwanda against the Tutsi population, or the mass murder of thousands Bosnian Muslims in Srebrenica in 1995.  

However, the term “genocide” carries a much broader meaning. The term was first codified and defined as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”), which has been ratified by 153 states as of May 2025, including the Russian Federation and Ukraine.  According to the International Court of Justice (the “ICJ”, the principal judicial organ of the United Nations, concerned primarily with state responsibility rather than individual culpability), the Genocide Convention embodies principles that are part of general customary international law to which states are bound as a matter of law regardless of whether or not they have ratified the Genocide Convention and the prohibition of genocide is a peremptory norm of international law from which no derogation is allowed (see for instance the 2006 decision regarding Armed Activities on the Territory of the Congo). 

The Genocide Convention defines certain “punishable acts” committed by individuals as genocide and establishes a duty for state parties to prevent genocide and to enact legislation to criminalize its commission, regardless of whether they are public officials or private individuals (see Articles I and IV).  Pursuant to Article III of the Genocide Convention, the following are “punishable acts” as referenced above: (i) genocide; (ii) conspiracy to commit genocide; (iii) direct and public incitement to commit genocide; (iv) attempt to commit genocide; and (v) complicity in genocide.  

Article II of the Genocide Convention defines “genocide” as follows: 

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

1. Killing members of the group;

2. Causing serious bodily or mental harm to members of the group;

3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

4. Imposing measures intended to prevent births within the group;

5. Forcibly transferring children of the group to another group.

Can the forcible displacement and “Russification” of Ukrainian children by Russia be classified as genocide?

In 2023, the US House of Representatives passed a resolution “condemning the illegal abduction and forcible transfer of children from Ukraine to the Russian Federation”, declaring that “the Russian Federation is attempting to wipe out a generation of Ukrainian children” and that Russia’s abduction, transfer, and forcible adoption of Ukrainian children is “contrary to Russia’s obligations under the Genocide Convention and amounts to genocide.”

Resolution 2482 of the Parliamentary Assembly of the Council of Europe (the “PACE”) demanded an immediate halt of forcible deportations of Ukrainian civilians, including children, explaining that the forcible transfer of children for “Russification purposes” could be punishable under Article II of the Genocide Convention, and “that the official Russian rhetoric used to justify the full-scale invasion and aggression against Ukraine, the so-called “de-Ukrainianisation” process, carries characteristics of public incitement to genocide or reveals a genocidal intent to destroy the Ukrainian national group as such or at least part of it.” 

A team of legal and genocide experts and open-source intelligence investigators concluded in 2022 that there were “reasonable grounds to believe” that Russia is responsible for violating Article II (genocide) and Article III(c) (direct and public incitement to commit genocide) of the Genocide Convention. While these grounds are a lesser standard of proof than required in applicable legal proceedings, this report is one of many giving credibility to the allegations of Russian crimes. This report is further supported by the 2024 Humanitarian Research Lab Report, which concluded that a broader case pursuing genocide convictions was plausible considering Russian atrocities in the region. 

Despite these physical indications, there are legal challenges in proving the crime of genocide; these challenges primarily manifest from the requirement of proving both genocide’s “physical” elements (murder etc.) and “mental” elements, with the mental specific intent elements creating the greatest evidentiary difficulty. In recent history, several courts or commissions were unable to confirm the existence of genocidal intent and hence were unable to conclude that genocide had been committed (e.g., the ICJ and commissions of inquiry regarding Former Yugoslavia, Sudan (Darfur), and the Central African Republic). 

The physical elements of genocide

The Ukrainian national group is protected under the Genocide Convention. As outlined above, there is ample and well-researched evidence of organized and forcible abductions of Ukrainian children to Russia, coupled with their “Russification”, including adoption by Russian nationals and obfuscation of their true identities.  The same applies in respect of other atrocities that may, in principle, form the basis of the “physical” element of genocide as set out above. The number of well-documented cases of atrocities (including known facilitators/perpetrators) and proven involvement of officials of the Russian Federation render it reasonably promising that at least the “physical elements” of the crime of genocide would be provable in a trial setting.  

The transfers appear to be organized at the highest level, are seemingly (mostly) permanent or structured so as to be permanent, brought about under coercion, and accompanied by identity obfuscation, “Russification”, and adoption by Russian citizens and outside the Ukrainian territory.  These actions go beyond objective humanitarian explanations to protect children from the impact of war as set out in the 1949 Geneva Conventions (specifically the Fourth Convention, concerning the protection of civilian persons in time of war) and the 1977 Additional Protocols (Protocol I).  As detailed by the 2024 Humanitarian Research Lab Report, there are convincing arguments to conclude that the afore-described systematic and widespread actions against Ukrainian children are not justifiable humanitarian actions on the basis of the following:

• Russia’s own unlawful actions have brought about the humanitarian crisis that now allegedly necessitates the children’s forced removal;

• the non-justifiably permanent character of the actions taken by Russia in respect of these children (including adoption, nationalization, and “Russification”);

• Russia’s systematic and organized violations of obligations even in a war to ensure/preserve family unity, transfer to neutral countries, and cultural/national identity of these children; 

• the systematic and widespread use of coercion, deception, obfuscation, and indoctrination (“Russification”) far beyond what could be reasonably argued to be driven by an objective or desire to simply protect children from the immediate effects of war; and 

• all of the foregoing happening under control and with the approval and knowledge of high-level Russian officials.

The mental elements of genocide

While the physical elements appear provable, the critical element of that definition of genocide and of most jurisprudence regarding genocide, is the requirement of the specific intent to commit the physical acts in Article II (a)-(e) whilst specifically targeting a national, ethnical, racial, or religious group, which intent must be present (and proven beyond reasonable doubt) in addition to the intent attaching to the physical elements of the underlying acts (see for instance the Krstić appeal judgment, para 134 (“unequivocally established”)).  

Proving the specific intent (such as the intent to destroy) that goes beyond the intent associated with the physical elements of a crime is by nature challenging in the absence of a confession or written plan of the perpetrators. Nevertheless, when considered against the backdrop of Russian officials’ dehumanizing and aggressive rhetoric (see above and see the 2024 Humanitarian Research Lab Report and the 2022 report of legal and genocide experts) regarding the destruction of the Ukrainian people, the possibility of genocide becomes more likely.  

Martial rhetoric alone, however, does not prove targeted intent to destroy in the sense of the Genocide Convention.  However, it would be an important element in proving such intent since it is well established, including under jurisprudence of the International Criminal Tribunal for the former Yugoslavia (the “ICTY”) (e.g., Popović appeal judgement, para. 468), that the required intent may be inferred contextually in case of a lack of more direct evidence of a perpetrator’s volition from his words or deeds.  Such an approach need not and may not be “compartmentalized” in the sense of inferring such intent separately for each potential genocidal act, but may be based on all evidence taken together (as for instance confirmed in the ICTY’s Stakić appeal judgement, para. 55).  

Historically, the “intent to destroy” is widely interpreted, including by relevant international tribunals (e.g., Krstić appeal judgment on margin note 25), as “intent to physically or biologically destroy the protected group” (i.e., attacking mere cultural or sociological characteristics to annihilate them is not sufficient).  With this in mind it may appear difficult to prove the required specific intent in connection with only the forcible abduction of children of a group (unless as an accessory to other genocidal acts that involve acts of physical or biological destruction).  However, the fact that the forcible abduction and transfer of children of a group is defined in the Convention as a genocidal act if coupled with the requisite intent, implies that this conclusion is too narrow.  The Global Justice Center’s 2018 article on the spectrum of possible non-lethal genocidal violence and related intent is in our view instructive in this respect (including non-lethal acts of genocide, which are typically directed against females).  The Global Justice Center’s article advocates for a broader view that would “more easily encompass conduct that targets the social bond that bind individuals into a group” (see p. 33 et seqq., in particular p. 37) and focuses on genocide that may be perpetrated without killing (quoting, for instance, the broader views expressed in the 2006 Krajišnik ICTY trial judgement (see e.g., para. 854, footnote 1701)). 

Protecting Children and Obtaining Judgments

When it comes to obtaining actual judgements against individuals or against the Russian Federation, the existence of a genocidal intent may be a reasonable conclusion in light of the available evidence and applicable precedent (as expressed in several trial judgements, such as the ICJ 2015 genocide judgement, paras. 143 – 148).  Given the existing judicial focus on lethal acts of genocide and the fact that Russian acts concerning the forcible abduction of children are limited to the above-referenced group of children in Russian occupied territories with limited evidence of systematic lethal actions, proving that the forcible abduction in itself amounts to genocide may, however, be challenging in a trial setting.  But however challenging it may appear to be, it is certainly not impossible in the light of facts as known today. 

Today’s world is interconnected to an unprecedented extent. Russian actions and state-sanctioned violence against Ukrainians and Ukrainian children is well-documented, systematic, and widespread.  As referenced in the Global Justice Center’s 2018 article, a broader understanding of genocidal intent should apply. As the Global Justice Center’s article states, genocide is a crime of intent, and not of scale: “Where this special intent is present, the killing of a thousand people is no less a genocide than the killing of a million people”.  If the landscape of international law cannot presently accommodate the ever-changing nature of warfare and state action, international law must evolve. 

Russian officials may feel “safe” at present.  But the likes of Ratko Mladić and others show that Russian leadership cannot rejoice too early.  It is by no means certain that the perpetrators will indeed escape justice.  And even if that were the case: in the light of the outrageous nature of the reckless actions committed against (inter alia) vulnerable Ukrainian children we consider it legally sufficiently promising and morally imperative to accept the challenge of pursuing those responsible for possible genocidal acts committed against Ukrainians, and notably including against Ukrainian children.  

Considering all facts, a potential genocidal pattern and the vastness of the Russian state’s involvement are inescapable (see, for instance, the 2022 report of a team of legal and genocide experts and open-source intelligence investigators).  This pattern of state-directed child transfers, viewed in light of international law, warrants close and sustained legal examination under the Genocide Convention.

Defining the Practice of International Criminal Defense - An Interview with Peter Haynes KC

Defining the Practice of International Criminal Defense

An Interview with Peter Haynes KC

Edited by Emma Bakkum & Paul Williams

A Note on Defending Justice

This blog is part of the Defending Justice series, an initiative of the Public International Law & Policy Group (PILPG) to promote an eclectic array of voices within the field of international criminal law. 

As part of our broader efforts to strengthen institutions of justice, this series seeks to create space for dialogue around the varied perspectives and concerns that shape these institutions. With that aim in mind, we interviewed a series of defense practitioners working in international criminal law and distilled their experiences and insights into a series of first-person monographs, preserving the spirit and voice of those interviews.

Editor’s Note

This blog introduces the topic of defense of the accused before international criminal courts and tribunals. By drawing upon Peter Haynes KC’s extensive experience at the International Criminal Tribunal for the former Yugoslavia (ICTY), the Special Tribunal for Lebanon (STL), and the International Criminal Court (ICC), it introduces several key themes to defense, including the structure of international defense teams, how to effectively defend the accused before international criminal tribunals, differences between domestic and international defense practices, and the future outlook for international criminal defense lawyers. Through the striking first-hand achievements of Peter Haynes in defending accused and managing defense teams at international criminal courts, this blog realistically positions international defense work within the international criminal law project and articulates standards that need to be met in order to effectively defend accused before international criminal courts and tribunals. 

Introduction

A strong defense is not just a procedural safeguard. It is the foundation of a fair trial and a vital part of the international justice process. Over the years, I have come to see the defense as the quiet force that holds the system accountable. It is the defense that ensures the rights of the accused are not only recognized but actively upheld.

I have spent most of the last 17 years appearing before various courts and tribunals in The Hague, The Netherlands, including the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Court (ICC), and the Special Tribunal for Lebanon (STL). The first time I worked in defense in The Hague was at the turn of the century. I was ready for a change from my domestic career in the United Kingdom, so I took the step to move to The Hague and work at the ICTY. My primary motivations to work in the difficult field of defense back then were the disenchantment I felt with domestic criminal practice, especially the inability to concentrate on my own cases because of the volume of work and the “returns” system (I was known for my ability to be able to pick things up at short notice),* as well as the desire to do something new and cutting-edge. 

I returned to the Hague and the ICTY in 2006, where I appeared for the defense of General Vinko Pandurević in relation to the Srebrenica massacre.** From then on, I worked continuously as an international defense lawyer, appearing in cases involving charges of genocide, crimes against humanity, war crimes and international terrorism. At the STL, from 2012 to 2023, I represented the victims of the terrorist bombing in Beirut which resulted in the assassination of then Prime Minister, Rafik Hariri. At the ICC, I appeared for Jean-Pierre Bemba, the former Minister of Defense and Senator of the Democratic Republic of Congo, starting in 2013 and securing his acquittal of all charges on appeal in 2018. In June 2024, I was assigned to represent the interests of Lord Resistance Army’s leader Joseph Kony before the ICC. Between 2019 and 2021, I furthermore held the office of President of the International Criminal Court Bar Association, becoming the first and only person to be re-elected to the post.

Domestically in the United Kingdom, I have appeared for both the prosecution and the defense inter alia in cases of murder, serious fraud, sexual offenses, human trafficking, and complex conspiracies. Away from crime, I have acted as lead counsel in a class action against the British government concerning the torture of prisoners in Cyprus; initiated proceedings against the ICC seeking $75 million in damages for the losses arising from the freezing of Bemba’s assets; and represented the Tamil community in an appeal to the UK Proscribed Organisations Appeal Commission relating to the Liberation Tigers of Tamil Eeelam.

These experiences, across different courts and contexts, have shaped how I understand the role of the defense within international criminal justice. What began as a professional challenge evolved into a deeper understanding of what it means to defend accused in a system built to prosecute those responsible for the gravest crimes. 

Defense as the Measure of International Justice

At the ICC, the Rome Statute provides a detailed framework for the rights of the accused. Article 67 guarantees the right of the accused, including to be informed of the charges, to have adequate time and facilities to prepare a defense, to be tried without undue delay, and to choose legal counsel freely. It also affirms the right to examine witnesses, present evidence, remain silent, and receive any material from the Prosecutor that may suggest innocence or mitigate guilt. 

But rights on paper are not enough. In practice, defending someone before an international tribunal requires a well-resourced and experienced team. I have worked with investigators, case managers, and legal assistants who bring deep expertise and commitment to the work. The volume of disclosure, the complexity of legal issues, and the cross-border nature of our investigations demand a level of coordination and strategic planning that goes far beyond what is typically required in domestic criminal practice. My experience at the ICC, and earlier at the ICTY and STL, has taught me that institutional knowledge and adaptability are just as important as legal skill.

International defense work is fundamentally different from domestic criminal litigation. We operate in multilingual courtrooms, across diverse legal traditions, and often in politically sensitive environments. The crimes under scrutiny are not only serious but also deeply embedded in historical and social contexts. As defense counsel, I have had to navigate bureaucratic obstacles, limited access to witnesses, and political resistance that can make even the most basic investigative steps a challenge. Unlike domestic systems, where lawyers may benefit from established norms and local familiarity, international defense requires flexibility, cultural sensitivity, and a willingness to challenge dominant narratives.

In this blog, I reflect on what it takes to effectively defend an accused before international criminal tribunals. I focus primarily on the law and practice of the ICC, but I also draw on my experience at the ICTY and STL to highlight broader institutional dynamics. I explore how international defense teams are structured, what they require, how international defense differs from domestic criminal practice, and how I see the future of international defense. Ultimately, I argue that the strength of the defense is a litmus test for the legitimacy of international criminal justice.

International Criminal Defense Lawyers and Teams

Defense at international criminal courts and tribunals differs in many ways from defense at the domestic level, as described in further detail later in this blog. Years of experience as an international criminal defense lawyer and leading defense teams have led me to identify several key requirements for lawyers seeking to defend accused before international courts, as well as best practices for the structure and management of a defense team. 

Defense Qualifications for International Criminal Courts

Defense counsel appearing before international criminal courts, including the ICC, are independent legal professionals. Unlike prosecutors, who are employed by the Court, defense counsel are not staff members. However, to appear before the ICC, counsel and their assistants must meet specific eligibility criteria and be admitted to the Court’s official lists.

To qualify as defense counsel, applicants must satisfy the baseline requirements set out in Rule 22 of the Rules of Procedure and Evidence and Regulation 67 of the Regulations of the Court. These include demonstrating established competence in international or criminal law and procedure, and having at least ten years of relevant experience in criminal proceedings. Candidates must also be fluent in one of the Court’s working languages, English or French, and have no convictions for serious criminal or disciplinary offenses. Associate counsel and assistants to counsel must meet similar standards, though with a minimum of eight years’ and five years’ experience respectively. All applicants must submit documentation verifying their qualifications, including proof of legal training, professional references, and evidence of language proficiency. Once admitted, those on the List of Counsel may practice before the Court as defense counsel, legal representatives for victims, duty counsel, or ad hoc counsel. 

Professional investigators are another critical component of defense teams. The ICC maintains a separate List of Professional Investigators, governed by Regulation 137 of the Regulations of the Registry. Investigators must have at least ten years of experience in criminal investigations, either at the national or international level. They must demonstrate competence in international or criminal law and procedure, and be fluent in one of the Court’s working languages. In most cases, investigators are also expected to speak at least one language relevant to the country or region under investigation. Defense and prosecution teams propose their own case-specific investigators for inclusion on the list, subject to approval by the Registry. 

Beyond counsel and investigators, defense teams typically include assistants, case managers, and administrative staff. Legal assistants are expected to hold advanced degrees in law, with specialization in international criminal law, human rights law, or related fields. They assist with legal research, drafting, and analysis, and often play a key role in preparing filings and coordinating with the Court. Case managers oversee logistical aspects of the case, including disclosure, scheduling, and document management. Administrative staff support the day-to-day functioning of the team, ensuring that records are maintained, deadlines are met, and internal communication is efficient. Hiring practices for support staff vary depending on the complexity of the case and available resources. However, professionalism, adaptability, and familiarity with international criminal procedure are essential across all roles. 

Structure of Defense Teams

The composition of a defense team at the ICC depends on whether the accused is indigent, receiving legal aid, or is paying for his own representation. The latter of which means far more flexibility in choosing a defense team. Where the accused is indigent, the structure and funding of the team are governed by the ICC’s Legal Aid Policy. This policy outlines the permissible size and composition of defense teams, calibrated to the phase and complexity of the case. In general, a defense team includes two counsel, two assistants to counsel or legal officers, two case managers, and, where necessary, a language assistant. The Policy also provides an investigative budget, which may be used to assign either a professional investigator or a resource person to the team.

Each role within the defense team carries distinct responsibilities. Lead counsel, supported by co-counsel, sets the strategic direction of the case, represents the accused in court, and oversees all legal decisions. Assistants to counsel support this work through legal research, drafting, and analysis, often taking the lead on specific motions or evidentiary issues. Case managers handle procedural logistics, including disclosure, filings, and coordination with the Court. Investigators are responsible for identifying and interviewing witnesses, gathering evidence, and verifying factual claims. If required, language assistants facilitate communication between the accused and the team and ensure that all materials are accurately translated. Resource persons may provide contextual expertise, such as knowledge of local customs, political dynamics, or historical events relevant to the case.

Defense teams also often rely on interns and visiting professionals. They contribute to research, drafting, and administrative tasks, and their involvement can be key to the success of the team when properly integrated. 

Forming a Successful Defense Team

In practice, defense teams are often assembled through professional networks and prior working relationships. However, there is increasing recognition of the need to ensure diversity and representation, particularly of individuals from the situation country. This enhances cultural competence and facilitates engagement with local witnesses and communities.

Essential to the effectiveness of a defense team are the structure, synergy, and internal dynamics. A team that is divided, dysfunctional, or unclear in its strategic direction will struggle to prepare a credible defense. It is critical that all members share the Lead Counsel’s strategic vision and understand their roles within that framework. Clear communication, mutual respect, and a shared commitment to the case are indispensable. It is important to give all team members, including interns, ownership over their work and opportunities for professional development. This fosters a collaborative environment and strengthens the overall quality of the defense.

Challenges within defense teams are not uncommon. In the Bemba case, for instance, two Congolese defense lawyers were later investigated themselves, and found guilty of various offenses against the administration of justice related to the false testimonies of defense witnesses. This situation brought to light key issues regarding team cohesion, professional conduct, and the pressures faced by defense teams operating in politically sensitive contexts.

Ultimately, the defense team is not simply a collection of professionals. It is a strategic unit tasked with upholding the rights of the accused and the fairness of international proceedings. Its composition, management, and internal cohesion can shape not only the outcome of a case but also the broader perception of justice at the international level.

Essential Skills and Attributes

Effective international defense requires more than legal expertise. It demands a distinct set of personal and professional qualities that are often not fostered in domestic practice. The transition from national to international defense work involves adapting to different legal cultures, institutional expectations, and team dynamics. Over time, I have found that several attributes have proven essential to navigating this shift successfully.

Confidence is particularly important. Defense counsel must be prepared to assert the rights of the accused in environments where they are often viewed with suspicion. Public opinion may be hostile, and the presumption of guilt can be strong. In such settings, counsel must advocate with clarity and conviction, maintain composure under pressure, and defend strategic decisions even when they are unpopular. Confidence also plays a role in courtroom advocacy, where counsel must challenge assumptions, cross-examine witnesses, and engage with judges who may be unfamiliar with common law techniques or adversarial reasoning.

Adaptability and flexibility are equally critical. International defense work varies not only from domestic practice but also from one tribunal to another. Differences in judicial background, procedural culture, and legal tradition can shape the tone and substance of proceedings. In the Popović case, for example, the Presiding Judge was Maltese and came from a common law background. In Bemba, the Presiding Judge was Brazilian, with a civil law orientation. This shift required an adjustment of strategy. The civil law judge was less receptive to common law practices, and the defense had to adjust its approach to align with the expectations of the bench. The ability to read the courtroom, anticipate procedural preferences, and tailor advocacy accordingly is essential.

A useful analogy comes from football. David Beckham, known for his success across multiple European teams, was able to perform consistently because he adapted to different playing styles, coaching philosophies, and team cultures. International defense lawyers must do the same. Each tribunal has its own particularities, and success depends on the ability to integrate, adjust, and perform under varying conditions.

Diplomacy and interpersonal skills also matter. Defense lawyers are rarely the most popular figures in international criminal proceedings. They represent individuals accused of serious crimes, and their role is often misunderstood. Building relationships with Registry staff, opposing counsel, and even judges requires tact, professionalism, and a willingness to engage constructively. Being friendly and respectful, even in adversarial settings, can help defuse tension and facilitate cooperation. It is important to make allies where possible, even among those who may not be inclined to support the defense.

Leadership is another key attribute, especially as Lead Counsel. Unlike domestic practice, where defense counsel may work alone or with minimal support, international defense teams are often composed of six to seven individuals from diverse backgrounds. As lead counsel, managing this team requires clarity of vision, delegation of tasks, and the ability to foster cohesion. Everyone must understand the strategic direction of the case and their role within it.

Other, additional, qualities of a lawyer that contribute to effective international defense include sound judgment, strong writing skills, and courtroom presence. Counsel must obviously be able to communicate arguments persuasively, both in writing and in the courtroom. Good IT skills are also increasingly essential, given the use of electronic case management systems, the volume of digital disclosure, and the need for secure communication.

These attributes, in my view, are foundational to the practice of international defense. The most effective lawyers in this field combine technical knowledge with strategic insight, interpersonal skills, and a commitment to fairness in the face of complexity and resistance.

Resource Constraints

Resource constraints are a defining reality in international defense practice. While the ICC provides some institutional support to defense teams, including access to the Office of Public Counsel for the Defense, logistical support to investigative activities, and basic IT infrastructure, the disparity between defense and prosecution is significant. The Office of the Prosecutor (OTP) routinely operates with far greater resources. In most cases, their teams outnumber ours by a ratio of eight to one. Prosecutorial staff benefit from permanent contracts, stable working conditions, and access to advanced document management systems. At the ICTY, for example, the OTP’s internal platform was far more sophisticated than anything available to defense teams.

Defense teams, by contrast, are composed of external contractors. We do not receive sick leave, vacation days, or parental leave. Our cybersecurity and travel security are minimal compared to the protections afforded to OTP staff. The imbalance is structural and persistent. But fairness in resources is not the measure of success, you do what you can with the resources you have, and what matters is the quality of the work: what is filed and how it is argued in court. Despite the limitations my defense teams have faced, I have never felt prouder of the written submissions produced by my teams. The appeal brief in Bemba remains one of the clearest examples of what can be achieved with a focused strategy, despite limited resources. 

A successful written brief is defined by clarity, consistency, and presentation. It must be readable, well-indexed, and free of unnecessary repetition. Style matters in a brief: font choices should be coherent, text should be justified, and a logical, indexed, structure should help guide the reader through complex legal arguments. A good brief does not just require an excellent understanding of the law and persuasive arguments; it also requires clarity and a strong presentation. This takes time and careful review.  

Courtroom advocacy requires the same level of preparation. A strong appearance in court is built on calm delivery, mastery of the evidence, and proficiency with the technology used. It is important to remain composed, even when challenged by the bench or provoked by opposing counsel. If an objection is necessary, it must be strategic and grounded in fairness, particularly fairness to the witness. These moments are rare, and they must be used wisely.

Working within resource constraints demands dedication, resilience, and teamwork. The defense may not have the same institutional backing as the prosecution, but it has the capacity to produce work of equal quality, both in written briefs and courtroom appearance.

International vs. Domestic Criminal Law Practice

Key differences between international and domestic criminal trials are not limited to legal frameworks or procedural rules. They extend to the length and scale of the cases, structure, and type of work throughout the proceedings. These differences shape the role of defense counsel and the demands placed on the defense team throughout the life of a case.

Key Differences in the Trial Process

One of the most significant distinctions is the length of proceedings. International trials often span several years, if not a decade. The Bemba case at the ICC lasted ten years from pre-trial to appeal. In Popović at the ICTY, which extended over nine years, the Presiding Judge remarked early in the proceedings that counsel should prepare for the long haul, noting that many changes in our private lives would likely occur before the case concluded. This observation reflects a broader truth: international defense work requires sustained commitment over long periods, often becoming the central focus of a lawyer’s professional and personal life.

The intensity of client contact is another defining feature of international criminal cases. Unlike many domestic systems, where communication with clients may be limited to court appearances or scheduled meetings, international defense work involves regular, often daily, interaction with the accused. Visits to detention facilities are frequent, and the relationship between counsel and client becomes deeply personal. Clients and their families may become part of the lawyer’s daily life, creating a dynamic that is both humanizing and pressurized. In The Hague, where the court building(s), detention center, and legal offices are located within a small geographic area, the proximity reinforces this intensity and can blur the boundaries between professional and personal space.

The scale of international cases also sets them apart from domestic criminal cases. The crimes under investigation typically involve multiple incidents, geographic regions, and hundreds of witnesses. Defense teams must manage vast quantities of evidence and coordinate complex legal strategies. Unlike domestic practice, where a lawyer may work independently or with minimal support, international defense requires the management of a multidisciplinary team. These teams are often composed of individuals from diverse legal traditions and cultural backgrounds. Effective leadership in this context demands intercultural sensitivity and inclusive team management.

The nature of the legal work itself in international crimes cases is also distinct from domestic cases. In domestic systems, legal arguments are often raised in court. In international criminal law, however, most procedural and substantive issues must be submitted in writing through the filing of a motion. In addition, international defense teams are responsible for conducting their own investigations. This includes identifying and interviewing witnesses, collecting evidence, and verifying facts, tasks that are typically handled by police or investigative authorities in domestic systems.

Key Differences in the Defense Strategy and Procedure

These structural and procedural differences between domestic and international criminal cases require a shift in the approach to defense work. International defense counsel must be prepared for long-term engagement, sustained client interaction, and the management of legally complex cases and multilingual teams.

This also means a shift in defense strategy and procedure, as proceedings differ markedly from domestic practice, particularly in common law jurisdictions. International defense teams must be prepared to litigate complex legal issues, respond to evolving jurisprudence, and advocate effectively within a system that blends multiple legal traditions. 

First, international trials tend to be more legalistic, with a greater emphasis on the interpretation of law and precedent. In domestic proceedings, the focus is often on the presentation and review of evidence. By contrast, international trials frequently center on the scope and application of legal provisions, many of which remain open to interpretation due to the relatively limited number of cases involving international crimes. 

This legal focus is especially pronounced in relation to the concept of modes of liability. Concepts such as command responsibility, joint criminal enterprise, and indirect co-perpetration are still evolving. Defense teams must engage in detailed litigation to challenge the scope, elements, and evidentiary thresholds of these doctrines. The strategic emphasis shifts from factual rebuttal to legal interpretation, requiring sustained engagement with jurisprudence from multiple tribunals and careful framing of arguments that may influence future case law.

Second, the process of judicial decision-making at international tribunals differs. In international tribunals, judges deliberate on whether the prosecution has proven each element of the crimes charged beyond reasonable doubt. They draft the judgment based on these deliberations and determine the sentence. There is no jury. This model places significant weight on the written record, particularly the trial transcript. Judges and legal officers often rely on transcripts when drafting judgments, which means that non-verbal cues of witness examination, such as tone, hesitation, or facial expression, are excluded. Defense counsel must therefore ensure that key points are clearly articulated and captured in the transcript. This requires deliberate planning for and during witness examination and a strategy to direct your defense in a much more purposeful way into law and precedent.

Third, procedural particularities at international courts shape defense strategy. International criminal law reflects a combination of common and civil law traditions. Pre-trial litigation is extensive, with prolonged debates over the admissibility and relevance of evidence. Hearsay is more readily admitted than in many domestic systems, and the prosecution may call rebuttal witnesses after the defense case has concluded. The procedural framework is also highly codified, with detailed regulations governing filings, disclosure, and courtroom conduct. Defense teams must navigate these rules and regulations with precision and adapt their strategies to the procedural realities of each tribunal.

Another distinctive feature in international criminal proceedings is the participation of victims in proceedings. At the ICC, STL, and the Extraordinary Chambers in the Courts of Cambodia (ECCC), victims may be represented by counsel and may submit observations on legal and factual matters. This introduces an additional layer of complexity, as defense teams must respond not only to the prosecution but also to victim representatives. In the Bemba case at the ICC, for example, victim participation influenced the structure and content of the proceedings, requiring the defense to engage with multiple parties simultaneously.

Effectiveness of Modern International Criminal Tribunals 

Despite its foundational commitment to accountability and fairness, the ICC has faced persistent challenges in delivering on its mandate. Two structural issues in particular have in my view undermined its effectiveness and raised concerns about the integrity of its proceedings.

The first relates to enforcement. Unlike the ICTY, which operated based on a UN Security Council Resolution grounded in Chapter VII of the UN Charter and benefited from the cooperation of all UN member states, the ICC lacks a comparable enforcement mechanism. The ICTY was able to secure the arrest and surrender of suspects with relative consistency, contributing to its reputation as a successful international tribunal. In contrast, the ICC has struggled to bring high-level suspects into custody. While the Kenya cases and the Bemba case involved prominent figures, many of the individuals who have faced trial before the ICC have been relatively low-level actors. This has led to criticism that the Court is failing to pursue the most responsible perpetrators and is instead focusing on those who are politically or logistically easier to apprehend.

This dynamic has prompted me to call for a more strategic use of the complementarity principle. Under Article 17 of the Rome Statute, states bear the primary responsibility for investigating and prosecuting crimes within their jurisdiction. The ICC should consider referring cases involving lower-level perpetrators to domestic systems, where feasible, and focus its resources on those most responsible for serious international crimes. Such an approach would not only reinforce the principle of complementarity but also help the Court concentrate its efforts on cases with the greatest potential impact.

The second issue concerns the process by which suspects are brought into custody at the ICC. I have witnessed a tendency to issue arrest warrants based on preliminary suspicion, with limited scrutiny of the strength of the underlying case. This practice places the accused at a disadvantage and undermines the fairness of the proceedings. Although the Rome Statute provides for a confirmation of charges hearing within a reasonable time, this timetable is frequently extended. There is no provision for custody limits, and the evidentiary threshold for confirmation is not consistently applied. The result is prolonged pre-trial detention and uncertainty for the accused. I believe there should be a more structural and thorough review of arrest warrants before they are issued, as well as a structural review of whether people in custody should remain in custody or should be released. 

These two systemic shortcomings have implications for the overall fairness of trials at the ICC. While the Court has demonstrated its commitment to due process, evidenced by the acquittal of several defendants, the pre-trial phase remains a point of concern. A more rigorous review of arrest warrants, clearer standards for confirmation, and greater respect for procedural timelines would strengthen the Court’s credibility.

The Future Outlook for Defense Counsel 

The role of defense counsel in international criminal law remains underappreciated, despite its centrality to fair trial guarantees and the legitimacy of international justice. A functioning criminal system requires not only effective prosecution but also robust and independent defense. Acquittals, when they occur, should not be viewed as institutional failures, instead they are indicators that the system is capable of applying legal standards impartially. The rhetoric surrounding acquittals must shift to reflect this reality.

There is a persistent failure within the broader international community to recognize the value of the defense function. Legal aid decisions are often framed in terms of cost rather than necessity. Defense budgets are scrutinized more heavily than prosecutorial ones, and support for defense teams is frequently treated as discretionary. This approach undermines the principle of equality of arms and risks reducing the defense to a procedural formality rather than a substantive counterweight to the prosecution.

Looking ahead, I believe defense counsel face a number of challenges that extend beyond legal argumentation. Physical safety is a growing concern for me and my colleagues. In high-profile cases, such as the Bemba case, defense lawyers have encountered perilous situations due to public visibility and political sensitivities. The association with controversial figures or contested narratives can expose counsel to threats, surveillance, and personal security risks. These risks are compounded by the increasing vulnerability of legal professionals to cybercrime. Online exposure, data breaches, and targeted digital harassment pose serious threats to the confidentiality and integrity of defense work.

Resource constraints are also likely to intensify. The ICC and other international tribunals face mounting financial pressures, and defense teams are often the first to experience reductions in support. Cuts to legal aid, investigative budgets, and staffing levels compromise the ability of counsel to prepare and present a full defense. Without adequate resources to the defense, the fairness of proceedings is placed at risk.

To address these challenges, a cultural shift is needed. States, institutions, and civil society actors must recognize that defense is not an auxiliary component of justice but a foundational one. Adequate resources for defense, protection for legal professionals, and respect for the role of counsel are essential to the future of international criminal law.

Conclusion 

The practice of international criminal defense is shaped by a unique set of legal, procedural, and institutional frameworks. A successful defense case requires counsel with a specific set of core qualifications and attributes, including confidence, adaptability, diplomacy, leadership, sound judgment, courtroom presence, strong writing skills, and technological proficiency. Together, these attributes enable defense counsel to navigate the complexities of international proceedings and uphold the rights of the accused in some of the most challenging legal environments. Additionally, essential to the effectiveness of a defense team is a shared strategic vision and a clear division of roles within that framework. 

International trials are generally longer, more procedurally complex, and more heavily reliant on written litigation. Furthermore, the relationship between counsel and client is more intensive, and the scale of the cases requires the management of diverse, multidisciplinary teams. Defense teams must be able to operate within a hybrid legal system that blends common and civil law traditions. The defense team’s legal strategy is shaped by the evolving nature of international jurisprudence, with a strong emphasis on precedent and legal interpretation. The participation of victims adds another layer of complexity, requiring defense teams to engage with multiple parties throughout the proceedings.

Looking ahead, I think that several areas require attention. Much has changed since the early days of international criminal tribunals. The ICC has established the Office of Public Counsel for the Defense and developed legal aid frameworks that support our work. But the defense function remains under-resourced and under-recognized. Investigative support remains uneven and cooperation from states is still frequently limited. These structural imbalances undermine the principle of equality of arms and thus threaten the credibility of the proceedings.

The wider international community must acknowledge that an effective defense is not a procedural formality but a cornerstone of a fair and credible justice system. Acquittals should be understood as evidence that the system is functioning as it should, not as institutional failure. The rhetoric around defense outcomes must change accordingly.

The ICC faces its own set of challenges, including the need for stronger state cooperation, a more coherent and equitable legal aid policy, and improved security protocols for defense teams. The Court must also take seriously its obligation under the complementarity principle to focus on prosecuting those most responsible for international crimes, while encouraging domestic systems to address lower-level perpetrators. Finally, arrest warrants should be issued only after careful review, and the rights of the accused must be protected through timely confirmation proceedings and meaningful custody safeguards.

The future of international defense counsel will depend on the system’s ability to address these structural issues. Acquittals demonstrate that fair trials are possible, but the path to that outcome is often fraught with procedural delays, resource constraints, and personal risk. The security and protection of defense counsel must be prioritized, alongside sustained investment in the institutional capacity of the defense function with a view to strengthening the role of the defense in international criminal justice and ensuring that the principles of fairness, equality, and due process remain at the heart of the international criminal justice system.

* In the UK criminal bar, the “returns system” refers to the practice of reassigning cases at short notice to another barrister when the original advocate is unavailable, often due to scheduling conflicts. The barrister taking the “return” must prepare and appear in court with minimal time to review the case.

** The Srebrenica massacre refers to the July 1995 killing of more than 7,000 Bosnian Muslim men and boys by Bosnian Serb forces in and around the town of Srebrenica during the Bosnian War. It has been recognized by international courts, including the ICTY and the ICJ, as an act of genocide.

Elections in Ukraine: Between Peace Demands and Democratic Integrity

Elections in Ukraine: Between Peace Demands and Democratic Integrity

By: Dr. Paul R. Williams* and Sindija Beta**

As Ukraine navigates the most consequential peace negotiations in its modern history, the question of elections has again resurfaced during the most recent peace agreement drafts. The recently publicized 28-point plan, allegedly drafted by US and Russian officials, places elections soon after the cessation of hostilities as a requirement of any settlement. More recently, US President Trump accused Zelenskyy of prolonging the war to avoid holding elections, in response to which President Zelenskyy announced his readiness to hold elections even during martial law should security be ensured. 

Nonetheless, the unavoidable questions and issues that arise when elections in Ukraine are discussed are numerous. Martial law remains in place, during which elections are prohibited, millions of citizens are displaced internally or abroad, and large parts of the country remain under occupation. In this context, elections require more thinking than an arbitrary timeline in a poorly thought-through plan or baseless accusations of President Zelenskyy clinging to power. The challenge is to design an electoral process that is credible, inclusive, and secure, while resisting external pressure to rush toward a vote that could fracture Ukraine's hard-fought legitimacy.

Public debate reflects this tension. Civil society organizations such as Opora have outlined detailed roadmaps for postwar elections, emphasizing legal reform, diaspora inclusion, and international monitoring. Other institutions have likewise highlighted the risks of conducting elections during active armed conflict, noting that fairness and legitimacy are often compromised when security and freedoms are restricted. 

Challenges Facing Postwar Elections

There are a number of challenges that hinder Ukraine’s ability to hold elections. Beyond the initial hurdle of finding a legal solution to the prohibition on holding elections under martial law, which is currently in force but could arguably be lifted should a peace agreement be signed, there are other practical challenges to holding free and fair elections in Ukraine. This regards (1) the high numbers of displaced people in Ukraine and abroad, which makes registering voters difficult; and (2) meaningful political participation is restricted to those portions of the population that live under occupation and near the frontlines, as well as for those who have been conscripted to the military. The inability of active-duty soldiers to participate in elections raises serious questions about representation, particularly given the scale of mobilization during the war. 

More than six million Ukrainians remain abroad, with millions more internally displaced. Their participation is essential for legitimacy, but the legal framework and infrastructure in place would create significant obstacles for large portions of displaced people to participate in elections. Without secure absentee and diaspora voting, elections risk excluding vast segments of the electorate, creating a democracy that speaks only for those who remained.

Occupied territories present another obstacle. Conducting elections in regions under Russian control would risk legitimizing occupation. Comparative practice from places, such as Afghanistan or Iraq, shows that elections held under coercion or foreign control rarely produce durable legitimacy or peace. 

Security of polling stations is another critical concern. In areas close to the frontlines or even in Kyiv, polling places could become targets for Russian intimidation, sabotage, or direct attacks. Protecting voters and election workers will require professional civilian policing, security, international monitoring, and clear protocols to prevent interference by Russia. 

This is especially pertinent given Russia’s decades-long practice of interference in elections in other states. Such actions have ranged from disinformation campaigns to direct support for proxy actors, consistently undermining democratic processes. 

Indeed, elections held shortly after a ceasefire, let alone during active armed conflict, can be vulnerable to manipulation if the conditions for sovereignty and security are not firmly established. If elections are rushed before Ukraine has secured its institutions and electoral infrastructure, they could become another arena for Russian influence rather than a milestone of democratic renewal.

El Salvador’s Chapultepec Accords illustrate how sequencing matters. Electoral reform was treated as the foundation of peace, with institutional reform and international monitoring as the cornerstone of election preparation. Ukraine faces similar imperatives. Without safeguards and comprehensive security measures in place, which would include support from Ukraine’s allies, elections could legitimize Russian occupation and allow it to further manipulate and interfere with Ukraine’s internal matters or exclude displaced populations, undermining Ukraine’s democracy. 

Opora’s roadmap for postwar elections outlines practical steps for holding free and fair elections in Ukraine. These steps include legal and electoral reform for ensuring that all of the population, including displaced persons and those on military duty, can vote, conducting comprehensive security assessments, strengthening the information space to minimize Russian interference, and increasing campaigning transparency, among others. These are not steps that can or should be rushed. 

Moreover, narrative control will be central. Russia frames elections as proof of normalization, but Ukraine must counter by insisting on sovereignty-first sequencing. If elections are portrayed as concessions, they risk undermining Ukraine’s democratic identity. If they are framed as sovereign acts of resilience, they can become a powerful symbol of renewal.

Conclusion

Elections in Ukraine will inevitably be a defining feature of the country’s postwar settlement, but they cannot be reduced to a checkbox in a peace plan. Holding elections immediately after a ceasefire, without adequate preparation, risks exposing the process to Russian interference through disinformation campaigns, cyberattacks, and manipulation of voter registries. It also risks disenfranchising millions of displaced Ukrainians who cannot easily access polling stations or register under the current frameworks.

A credible process depends on concrete steps: lifting martial law only once legal safeguards are in place, rebuilding voter registries to include displaced and diaspora populations, and creating security protocols for ensuring the security and integrity of polling stations. When it comes to occupied territories, the situation is even more difficult because voters in these areas, including Crimea and Donbas, should be able to participate in voting, but safeguards are required to ensure they are able to vote freely and that the election does not entrench an illegal occupation. 

These are issues that do not currently have solutions, and it would be irresponsible to overlook them due to external pressures. 

* Dr. Paul R. Williams is the Co-Founder and Director of the Public International Law & Policy Group and Rebecca Grazier Professor of Law and International Relations at American University

** Sindija Beta is the Legal Officer and Program Manager at the Public International Law & Policy Group

Roundtable Blog: Peace Without Possession—Preserving Ukraine’s Territorial Integrity in Negotiations

Roundtable Blog: Peace Without Possession—Preserving Ukraine’s Territorial Integrity in Negotiations

Editor’s Note:
This post is part of the PILPG Lawyering Justice blog’s roundtable series. Rather than a traditional co-authored piece, it presents a curated set of expert reflections from members of PILPG’s Ukraine Peace Negotiations Working Group. Drawing on the diverse expertise of our Peace Fellows, this roundtable-style blog explores the discussion surrounding Ukraine’s territorial integrity.  Published under the Lawyering Justice banner, this post reflects our commitment not only to chronicling the legal and diplomatic dimensions of active conflicts, but also to fostering strategic foresight and connecting lawyering to policy planning. We hope this format will serve as a model for future collaborative work on peace and justice.

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In the context of ongoing hostilities, Ukraine faces a critical dilemma: how to enter into peace negotiations while lacking control over parts of its territory and with the understanding that negotiating the return of the territory is unlikely. The stakes are high. Any misstep could weaken Ukraine’s sovereignty claims, embolden future aggression, or fracture international consensus. With these risks in mind, the Public International Law & Policy Group’s Ukraine Peace Negotiations Working Group convened a roundtable to examine the legal, political, and strategic dimensions of preserving territorial integrity in the absence of de facto control.

Participants were asked to consider six interrelated questions: what is the legal basis for assessing territorial questions in Ukraine; how Ukraine can best negotiate without possession; what legal instruments preserve territorial claims over time; how EU and NATO pathways intersect with unresolved occupation; how to navigate dueling constitutional claims; and whether strategic ambiguity risks weakening Ukraine’s legal position. The discussion drew on comparative precedents, international law, and realpolitik assessments of the current diplomatic landscape.

The purpose of this public-facing Roundtable Blog is threefold: to inform Ukrainian policymakers and Peace Formula stakeholders of the legal and strategic variables shaping territorial negotiations; to connect Ukraine-focused expertise with broader international practice; and to provide analytically grounded perspectives that can guide the development of durable, sovereignty-preserving peace frameworks.

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1. Territorial Integrity

What is the legal framework in which territorial questions should be assessed during peace negotiations?

Dr. Paul R. Williams

Any peace negotiations in Ukraine must be conducted within the framework of international law that categorically prohibits the acquisition of territory through aggression and affirms the principle of territorial integrity as enshrined in the UN Charter. The law of occupation makes clear that effective control does not alter sovereignty, meaning Ukraine’s legal title to its territory remains intact regardless of Russia’s presence on the ground. Negotiations must therefore assess territorial questions through the lens of continuity of non-recognition of unlawful annexation, ensuring that temporary arrangements or ceasefire lines are not mistaken for permanent borders. This framework preserves Ukraine’s sovereign rights while preventing the normalization of territorial conquest in international practice.

Sindija Beta

Any peace negotiations in Ukraine must recognize that territorial integrity is not simply a legal principle but a political safeguard against legitimizing aggression. International law prohibits territorial acquisition by force, and past precedents show that concessions made under pressure often become permanent fractures in rule of law. Ukraine’s legal title to its territory remains intact despite Russia’s military control, but negotiations must be structured to prevent Moscow from altering legal norms based on military force. Territorial questions should therefore be addressed as matters of international law, ensuring that the process reinforces international norms rather than erodes them.

Kateryna Kyrychenko

Territorial questions in peace negotiations must also account for the cultural rights at stake in the territories under temporary occupation. International human rights law guarantees the right of all communities to maintain their language, education, and cultural identity - rights that have been systematically violated in the occupied regions through forced Russification, the suppression of Ukrainian education, and efforts to erase local cultural heritage. These rights can only be meaningfully protected within Ukraine’s internationally recognized borders and under its legitimate authority.

Russia’s attempts to justify annexation through claims of “self-determination” or cultural protection have no legal basis: cultural rights are safeguarded through respect for territorial integrity, not through coerced referenda or occupation. Any peace negotiations must therefore reinforce non-recognition of Russia’s unlawful annexations and affirm that restoring Ukraine’s sovereignty is essential to protecting the cultural rights of affected communities.

Ambassador Ylber Hysa

Ukraine’s territorial integrity must remain the unambiguous end state of any negotiation process. It should not be reduced to declarative legal rhetoric. To reach this end state, the Ukrainian side may consider tactical and temporary transitional arrangements that facilitate the conditions for eventual full territorial reintegration.

These transitional steps would not replace or weaken Ukraine’s sovereignty claims. Rather, they provide operational pathways to realize them.

A feasible component of such a transitional framework is the establishment of a Peacekeeping Transitional Period (PTP) within the currently Russian-occupied territories. This PTP would operate under a UN-mandated or internationally mandated peacekeeping mission for a defined period (e.g., five years).

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2. Peace Without Possession

How can Ukraine enter into a peace agreement while lacking control over parts of its territory without undermining its long-term legal claim to those regions?

Professor Michael Kelly

Overlaying a current military control map with Ukraine’s geological survey reveals that the western parts of Donetsk and Zaporizhzhia, which are still under Ukrainian control, contain significant rare earth mineral deposits. These resources are likely to become bargaining chips in any transactional negotiation, particularly given that the Trump administration has already signed a rare earths deal with Ukraine. This dynamic is expected to shape trilateral discussions between Trump, Zelenskyy, and Putin. A recent Just Security article co-authored with Craig Martin outlines this scenario in greater detail.

Ambassador Ylber Hysa

The western parts of Donetsk and Zaporizhzhia, currently Ukrainian-controlled areas, contain significant rare earth mineral deposits, which may become a factor in negotiations, particularly within a transactional framework associated with a potential future U.S. administration.

However, comparable geological resources exist in the Russian-occupied territories as well. These resources should therefore be integrated into negotiation strategies as potential assets. A useful historical precedent is the post–World War II Saar–Ruhr arrangements, where resource governance played a stabilizing and cooperative role without undermining national sovereignty.

Professor David Crane

Neither Putin nor Zelenskyy is politically positioned to concede territory. Putin has suffered too many casualties to retreat without consequence, and Zelenskyy would face political collapse if he conceded land after such sacrifice. This impasse suggests that the war is unlikely to end soon. One possible approach is to establish local self-governance in the occupied provinces under a ceasefire, supported by neutral third-party peacekeepers modeled on the Sinai mission. However, any such arrangement must rest on the international community’s continued recognition of these regions as Ukrainian territory.

Professor Milena Sterio

Under the law of occupation, control does not equate to sovereignty. Ukraine retains its de jure claim to all territories currently under Russian control. This legal distinction must be preserved in any peace framework, as it forms the foundation for future reintegration and international support.

Ambassador Elayne Whyte Gomez

The current situation represents a new paradigm. While the international community has consistently recognized Ukraine’s borders, which have been affirmed in seven UNGA resolutions, this year's events at UNGA and UN Security Council changed some configurations and alliances at the UN regarding some Ukraine-sponsored texts. Any peace process must remain anchored in international recognition to avoid legitimizing aggression through ambiguity.

Ambassador Zorica Marić-Djordjević

Ukraine can enter into peace negotiations without conceding sovereignty by managing occupation rather than ratifying it. International law prohibits the acquisition of territory by force. Peace agreements must include “without prejudice” clauses, avoid sovereignty language, and refer to occupied areas as “territories temporarily outside the effective control of the Government of Ukraine.” These legal choices are essential to shaping a post-war order that upholds international norms.

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3. Legal Instruments for Continuity

What international legal instruments or precedents can Ukraine invoke to preserve its territorial claims over the long term?

Professor Milena Sterio

The law of occupation and the principle of non-recognition of territorial acquisition by force are Ukraine’s strongest legal tools. These doctrines have been upheld in numerous conflicts and must be embedded in any peace agreement. The agreement should avoid any implication of territorial transfer and instead reinforce Ukraine’s continuing legal title.

Ambassador Zorica Marić-Djordjević

Operationalizing legal continuity requires the use of administrative and security language rather than sovereignty terms. Ceasefire lines must not be mistaken for borders, and demilitarized zones must not imply territorial concessions. The legal framing must reflect temporary control, not permanent change, to ensure that Ukraine’s territorial claims remain intact.

Professor David Crane

Putin is relying on time and distraction to wear down Ukraine and its allies. In contrast, consistent international recognition serves as Ukraine’s legal and diplomatic shield. The tools exist; the challenge lies in using them visibly and persistently. Sustained and coordinated use of these instruments will ensure that Ukraine’s sovereignty remains protected even in the absence of immediate territorial control.

Ambassador Elayne Whyte Gomez

Ukraine’s principled legal position is gaining traction, particularly in the non-aligned countries. Many smaller states now see their own struggles reflected in Ukraine’s experience. This emerging solidarity could become a powerful force in sustaining legal continuity and resisting the normalization of occupation.

Ambassador Ylber Hysa

Ukraine can engage in peace negotiations without recognizing or legitimizing the occupation by adopting a framework that focuses on managing the temporary situation rather than accepting any permanent change.

To ensure this, ceasefire lines must not be interpreted as borders, demilitarized zones must not imply territorial concessions, and all legal and diplomatic language should explicitly describe any control arrangements as temporary and linked to a defined peacekeeping mandate. This approach preserves Ukraine’s sovereignty claims and prevents any de facto normalization of the occupation. It maintains the legal and political foundation for full territorial restoration once the international environment becomes more favorable.

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4. EU and NATO Pathways

How should Ukraine’s territorial integrity be addressed in the context of EU accession or NATO integration, particularly if parts of its territory remain under foreign control?

Professor David Crane

EU accession remains one of the most powerful strategic signals the international community can send to Russia. It demonstrates that Europe is not prepared to walk away from Ukraine’s future. The credibility of this pathway lies not only in its symbolic value but in its potential to unlock long-term political and economic integration that reinforces Ukraine’s sovereignty.

Ambassador Elizabeth Richard

NATO membership is politically untenable in the current climate. It remains a red line for Russia and would likely trigger disproportionate demands in any negotiation. In contrast, EU membership is both strategically viable and politically palatable. It offers Ukraine a credible path forward without escalating tensions, and it should be prioritized accordingly.

H. E. Dr. Igor Luksic

The EU path is not only a matter of legal alignment but also of strategic necessity. Ukraine’s integration into the EU could unlock vital resources for reconstruction, economic stabilization, and institutional reform. The precedent of Finland’s post-war transformation is instructive. While not directly analogous, it illustrates how strategic alignment with Europe can serve as a stabilizing force. Ukraine should insist on this track with greater urgency.

Professor Michael Kelly

Cyprus provides a compelling precedent. Despite being territorially divided following Turkey’s 1974 invasion and the continued occupation of the northern part of the island, Cyprus acceded to the European Union in 2004 with the strong advocacy of Greece acting as its sponsor state. The EU’s legal framework accommodated this division by suspending the application of EU law in the occupied areas while affirming the Republic of Cyprus’s sovereignty over the entire island, thereby preserving the principle of non-recognition of occupation. For Ukraine, the precedent demonstrates that full and effective territorial control is not an absolute prerequisite for EU membership, provided there is a committed sponsor or coalition of states willing to champion its accession. The decisive factor will be whether EU leaders summon the political will to treat Ukraine’s membership as a strategic move that signals Europe’s refusal to compromise on sovereignty and territorial integrity.

Ambassador Zorica Marić-Djordjević

The legal and political layers of EU accession must be addressed in tandem. While full and effective control is typically required, the Cyprus model demonstrates that suspended application of EU law in occupied territories is feasible. What matters is that the EU explicitly affirms Ukraine’s territorial integrity and commits to reintegration and reconstruction. The EU should treat Ukraine’s accession as a strategic imperative, not a procedural formality.

Tyler Thompson

Russia’s preferred model for Ukraine is Austrian-style neutrality—a Cold War-era posture that avoids NATO alignment while preserving nominal sovereignty. EU membership, however, is a tolerable outcome for Moscow and should be leveraged accordingly. The United States should press Brussels to make a political decision, as it did with Portugal and Spain after their transitions from dictatorship. Strategic ambiguity on this front only benefits Russia.

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5. Constitutional Claims

How can Ukraine navigate the fact that both it and Russia enshrine Donbas and Crimea in their constitutions?

Dr. Paul R. Williams

The challenge of dueling constitutional claims is not new, but it is particularly acute in this context.  The international community must avoid falling into the trap of false equivalence. Its legal position is grounded in international law, while Russia’s rests on unilateral assertions and coercive annexation. The distinction must be made explicit in every negotiation and public communication.

Tyler Thompson

Russia has long used constitutional amendments and legal rhetoric to accumulate bargaining chips. This is part of a broader lawfare strategy, refined through its experiences in Georgia and Kosovo. The goal is not legal clarity but leverage. Ukraine and its allies must anticipate this and ensure that international legal standards, rather than domestic proclamations, frame the discussion.

Professor Milena Sterio

International law provides clear criteria for the legitimacy of referenda and declarations of independence. Any referendum must be free, fair, and conducted without coercion. Unilateral declarations obtained through force are invalid. Ukraine’s legal position is strong if it continues to emphasize these principles and avoids mirroring Russia’s constitutional framing.

Ambassador Zorica Marić-Djordjević

Russia’s invocation of Kosovo is legally flawed. Moscow repeatedly cites Kosovo as precedent in order to justify its annexation of Crimea and its claims over occupied Ukrainian territories, arguing that the West recognized unilateral secession in Kosovo and therefore cannot deny Russia the same right. This comparison, however, ignores critical distinctions. Kosovo was not annexed; Crimea was. Kosovo operated under a UN mandate and international oversight; Russia acted unilaterally and by force. Moreover, Serbia’s constitution still claims Kosovo, but that has not altered Kosovo’s international status. Ukraine must highlight these differences and reject any narrative that equates its legal position with Russia’s, underscoring that Russia’s reliance on Kosovo is a political tactic rather than a valid legal precedent.

Professor David Crane

Domestic constitutional claims are a distraction. They do not override international law and should not be treated as legitimate bargaining tools. Ukraine’s legal team must remain focused on international norms and avoid being drawn into debates over internal legal texts.

Ambassador Elayne Whyte Gomez

There is growing awareness among the non-aligned states of the power dynamics at play in Ukraine’s case. This creates an opportunity for Ukraine to build broader coalitions and reinforce its legal position through shared experience and solidarity. The moment is ripe for strategic engagement beyond traditional allies. Many of these states have themselves faced pressures from larger powers and are increasingly sensitive to questions of sovereignty and territorial integrity. By framing its struggle as part of a wider global narrative against coercion and annexation, Ukraine can strengthen its legitimacy and broaden the base of international support.

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6. Strategic Ambiguity vs. Legal Clarity

Can Ukraine afford to use strategic ambiguity in peace negotiations, or does this risk weakening its long-term legal claim?

Professor Milena Sterio

Strategic ambiguity may offer tactical flexibility, but it carries long-term risks. Any ambiguity in the legal framing of a peace agreement could be exploited to undermine Ukraine’s territorial claims. The agreement must clearly distinguish between temporary arrangements and permanent sovereignty. Legal clarity is essential to preserving Ukraine’s rights under international law.

Tyler Thompson

Russia thrives in legal grey zones. Its lawfare strategy depends on exploiting ambiguity and reframing facts on the ground as legal precedent. Ukraine cannot afford to leave gaps in its legal position. Every omission becomes an opportunity for reinterpretation. The peace framework must be airtight.

Ambassador Elizabeth Richard

While the U.S. administration may appear distracted, the Department of Defense remains deeply engaged. There is still significant political and financial investment in Ukraine’s success, even if it operates below the radar. That institutional commitment should be leveraged to support a peace framework grounded in legal clarity and strategic foresight.

Ambassador Ylber Hysa

Peace negotiations between Ukraine and Russia should be understood not as a single event, but as a complex, evolving process. Within this framework, Ukraine’s territorial integrity must be treated as an active strategic objective, guiding the negotiation dynamics rather than existing solely as a formal legal principle.

In this context, strategic ambiguity does not contradict legal clarity. Instead, it can serve as a pragmatic tool for securing Ukraine’s long-term strategic red lines while preserving diplomatic flexibility during negotiations.

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Professor Michael Kelly: Professor at Creighton University School of Law and The Senator Allen A. Sekt Endowed Chair in Law

Professor David Crane: Founding Chief Prosecutor of the UN Special Court for Sierra Leone and Distinguished Scholar in Residence at Syracuse University College of Law

Professor Milena Sterio, the James A. Thomas Distinguished Professor of Law at Cleveland State University's Cleveland-Marshall College of Law and Managing Director at PILPG

Ambassador Elayne Whyte Gomez: Senior Fellow of the UN Institute for Disarmament Research, Professor at Johns Hopkins School of Advanced International Studies, and former Ambassador and Permanent Representative of Costa Rica to the United Nations

Ambassador Zorica Marić-Djordjević: Former Head of the Permanent Mission of Montenegro to the WTO and Special Representative to the UN Human Rights Council

Ambassador Elizabeth Richard: Former U.S. Ambassador and Assistant Secretary of State for Conflict and Stabilization Operations

H. E. Dr. Igor Luksic: the former Prime Minister of Montenegro

Tyler Thompson: Chief Negotiation Officer & Co-Founder, Expeditionary

Ambassador Ylber Hysa: Former Ambassador of the Republic of Kosovo to Montenegro and North Macedonia

Dr. Paul R. Williams: Rebecca Grazier Professor of Law and International Relations at American University

Sindija Beta: Legal Officer at Public International Law & Policy Group

Kateryna Kyrychenko: Head of Ukraine Legal Affairs and Program Management at Public International Law & Policy Group

Nuclear Testing: An Inflection Point or Another Step Toward Confrontation?

Nuclear Testing: An Inflection Point or Another Step Toward Confrontation?

By Ambassador (Ret.) Zorica Maric Djordjevic, Senior Peace Fellow, Public International Law & Policy Group (PILPG)

A New Round Begins in Moscow

By late October 2025, two troubling signals came from the world’s most powerful military nations — Russia and the United States.

The first move came from Moscow. President Vladimir Putin announced that Russia had completed tests of two nuclear-powered delivery systems. These were Burevestnik, a long-range cruise missile, and Poseidon, an underwater torpedo designed to devastate coastal regions with a radioactive surge. Both, reportedly, could evade existing missile defenses, creating a direct challenge to U.S. plans to build an expanded “Golden Dome.” Russian officials later clarified that both tests were non-nuclear, involving delivery systems rather than atomic warheads.

Within days, President Trump declared that the United States would keep pace with China and Russia and instructed the Department of War to resume nuclear-weapons testing. Officials later noted that such tests might involve system components rather than full detonations. Soon afterward, Washington unveiled its next-generation stealth nuclear cruise missile, the AGM-181 LRSO, signaling that the U.S. would match or outpace its rivals.

Putin responded by ordering the preparation of proposals for Russian nuclear testing should Washington proceed. “If the U.S. conducts such tests,” he said, “Russia must also take appropriate retaliatory steps.”

These exchanges rekindled the specter of superpower rivalry and signaled a return to competitive deterrence. For more than three decades, the Comprehensive Nuclear-Test-Ban Treaty (CTBT) has embodied a global consensus against nuclear explosions. Though the Treaty has not entered into force due to several key states not ratifying it (including the U.S., China, Iran, India, Pakistan, and North Korea), it has created a powerful informal norm. The global monitoring system of the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO) ensures nearly certain detection.

Since 1996, only India, Pakistan, and North Korea have violated this norm, and each test was detected. Russia’s and Washington’s recent announced decisions risk unraveling this restraint:

• Vertically, by legitimizing renewed testing and modernization among established nuclear powers.

• Horizontally, by weakening the normative barrier that deters aspirants from pursuing nuclear weapons.

Arms control rests on predictability. The long-standing assumption that no major power would resume nuclear testing preserved a baseline of trust. Once that assumption erodes, the architecture weakens. A return to testing may not ignite an immediate arms race, but it increases uncertainty and shifts future negotiations toward escalation management rather than risk reduction.

A Global Ripple Effect

Moscow’s reaction following Putin’s initial comments remains mixed. While the Russian Ministry of Foreign Affairs sought clarity on whether Washington intended to conduct full explosive tests or limited system trials, Putin warned of reciprocal actions that could inject volatility into an already fragile arms-control architecture. Nuclear parity has long anchored Russia’s conception of sovereignty and great power status. Any U.S. move toward testing, even a symbolic one, is seen through this lens. Putin’s unveiling of new nuclear systems added a deliberate symmetry: technological display as diplomacy.

Moreover, the revival of nuclear testing reverberates far beyond the U.S.–Russia dyad. China, which has not conducted explosive tests in decades but continues to modernize its arsenal rapidly, may feel compelled to respond. Even a symbolic U.S. test could accelerate strategic competition among the three major powers and undermine the CTBT’s already fragile authority.

For smaller and non-nuclear states — from Eastern Europe and the Western Balkans to the South Caucasus — renewed great-power signaling produces deep unease. Their security rests on predictable conduct by major powers and the credibility of international law. When deterrence eclipses dialogue, these foundations weaken.

In contrast, large parts of the Global South, including Latin America, Africa, Southeast Asia, and the South Pacific, remain firmly committed to Nuclear-Weapon-Free Zones. Their stance underscores a widening divide between states anchored in legal restraint and those asserting power through capability.

The long-standing nuclear taboo, driven by political restraint rather than formal rules, is now less certain.

The Ukraine Factor: Negotiations Under Nuclear Shadows

The current nuclear signaling between Russia and the United States does not take place in isolation; the war in Ukraine directly shapes it. Nuclear security has become part of the negotiating environment itself, not a parallel or distant issue. As a result, any diplomatic endgame must now account for:

• Why nuclear brinkmanship has intensified,

• How it reshapes incentives and red lines of all parties, and

• Why nuclear stability is becoming an important pillar of a future peace framework.

For Ukraine, the impact is double-edged. A more assertive U.S. posture offers reassurance, but it may also encourage Moscow to prolong the conflict in hopes of generating pressure on Washington. The risk is that negotiations devolve into a test of political endurance rather than a search for compromise — a dynamic in which deterrence logic overwhelms diplomacy.

Because recent Russian and U.S. announcements - from new Russian delivery systems to Washington’s intention to resume nuclear testing - demonstrate that strategic deterrence is once again contested, the new “28-point U.S. peace proposal” places renewed emphasis on credible Ukrainian security guarantees. These proposed “reliable guarantees” may fall short of full NATO membership and reportedly include meaningful restrictions on Ukraine, but they also reflect a core reality: when the nuclear threshold is publicly challenged, Ukraine’s vulnerability increases, and normative deterrence alone becomes insufficient. If deterrence is under strain at the nuclear level, it must be reinforced at the conventional and strategic levels for Ukraine. Without that reinforcement, any peace settlement risks becoming unstable – or even unworkable.

For Europe, caught between deterrence and diplomacy, the challenge is to keep communication channels open, especially for nuclear risk-reduction and humanitarian issues, even as the broader strategic environment hardens. 

Ultimately, nuclear signaling does not close the door to negotiations, but changes their architecture. The task for Washington is to convert deterrence into diplomatic leverage, using strength not to foreclose talks, but to enable them. In the end, nuclear testing may strengthen military power, but it weakens trust, the essential currency of diplomacy. The world now stands between a harder peace or a more protracted war.

Between Deterrence and Diplomacy

If Washington and Moscow continue to define strength through demonstration rather than dialogue, the space for diplomacy — especially on Ukraine — will continue to contract. What emerges may not resemble the classical Cold War arms race, but something more unstable: a world where uncertainty itself becomes a strategic instrument.

Whether this moment becomes a turning point or merely another step toward confrontation depends on how the major powers act. Nuclear testing can stabilize deterrence or destabilize diplomacy. Managed wisely, it could remind all sides of the catastrophic costs of miscalculation and ground arms control. Mishandled, it risks opening a new cycle of escalation.