08 Mar Debunking the Role of International Law in the Ukrainian Conflict
[Victoria Kerr LL.M. is a Scottish solicitor and Junior Researcher at the T.M.C. Asser Instituut, working primarily on the Netherlands Ministry of Foreign Affairs funded project ‘Strengthening Ukraine’s Capacity to Investigate and Prosecute International Crimes’ in partnership with Global Rights Compliance.]
Vladimir Putin, in his speech of 24 February 2022, declared, with reference to Article 51(7) of the UN Charter, that he was launching a ‘special military operation’ in Ukraine. In doing so, he referred to a breakdown of international law (and relations), in that so-called Western states have manipulated the international legal order to the point where they continue to violate international law with impunity. He pointed to the inaction of the UN Security Council in the situations of the former Yugoslavia, in Libya and Iraq, and its manipulative action in Syria, to the rise of terrorism and extremism as a result of Western ‘disregard for international law’, and to the expansion of NATO eastward. He considered these violations, together with increasing military, technology and other capabilities of Western states, as a security threat to Russia, warranting the ‘special military operation’ as self-defence. Putin also noted that the situation in Eastern Ukraine, in Donetsk and Luhansk, amounted to genocide, and alluded to the West’s view on Crimea and Sevastopol as disregard for their inhabitants’ free choice (and alluding to their right to self-determination under Article 1 of the UN Charter). He claimed that the ‘special military operation’ was not an occupation, nor did it intend to interfere with the interests of Ukrainian people, but rather that it was a response to the hostage-taking of Ukraine by neo-Nazis and Western powers.
Outrage, while having been building in the weeks (and years) before, was sparked worldwide, with mass media, political and legal analysis of the (il)legality of the invasion, seeking to ‘de-bunk’ Putin’s legal justifications. One key argument was that Putin’s invocation of Article 51 was incorrect due to the lack of an imminent armed attack against Russia (the ‘weaponisation’ of alleged violations of international law by Western states does not constitute an imminent armed attack, only a perceived security threat). Another, was that alluding to a right to collective self-defence is also misguided due to the lack of legal effect of the recognition by Russia of the independence of the Donetsk and Luhansk People’s Republics. Furthermore, it was argued that Russia cannot rely on humanitarian intervention to stop a genocide occurring, as not only is there no legal consensus on humanitarian intervention as a principle, but also that Putin did not refer to any evidence to support his allegation of the international crime of genocide (nor has he done so since the conflict began in Eastern Ukraine). Ukraine has since filed an application at the International Court of Justice (‘ICJ’) against Russia referring to ‘a dispute . . . relating to the interpretation, application and fulfillment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide [the Genocide Convention]’, and seeking confirmation that ‘Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide’, and in fact accusing Russia of ‘intentionally killing and inflicting serious injury on members of the Ukrainian nationality, the actus reus of genocide under Article II of the Genocide Convention’ and seeking provisional measures. Thus, arguments are being made (and international legal cases are being brought to establish) that not only did Putin not have international legal justifications for his invasion, but also that the invasion itself violated international law.
The fragmented responses on the basis of the illegality of the Russian invasion under international law by the international community, and the lack of impact they have had in preventing further escalation of the conflict have led some to argue that the international legal order, and international law itself, are dead. The UN Security Council, expectedly, has been paralysed as a result of the Russian veto. Kenya’s Ambassador to the UN, Martin Kimani powerfully stated: ‘multilateralism lies on its deathbed […]. It has been assaulted today as it has been by other powerful states in the recent past.’ While, on 2 March, the UN General Assembly adopted (by an overwhelming majority of 141 against 5) a resolution rejecting Russia’s brutal invasion of Ukraine and demanding that Russia immediately withdraw its forces and abide by international law, such a resolution only holds political weight, and is not legally binding. The US, UK, EU, Japan and Switzerland have resorted to imposing unilateral sanctions on a number of Russian oligarchs and Russian banks (removing them from SWIFT), as well as on the Russian Head of State, Vladimir Putin, and the Russian Foreign Minister, Sergei Lavrov, however, not all states have imposed the same sanctions (with the UK’s imposition being particularly slow), the legality of such autonomous sanctions is debatable under international law, and also their effectiveness is not fully clear (an argument which is raised in the context of many, if not all, sanctions). However, while questioning the future of multilateralism or the legality or effect of unilateral actions in promoting international legal order may be valid, this will not result in an end to the Russian invasion of Ukraine. The continued impunity for violations of international law will not be addressed by criticising international law (or indeed further violating it, as Putin did).
A shift in narrative is therefore needed towards how international law can be harnessed and enforced in situations such as that which is occurring in Ukraine. As the past week has shown, there are many potential mechanisms already available, or which could be created – particularly under subfields of international law (such as international human rights law or international humanitarian and criminal law). From a human rights angle, for example, on 1 March 2022 the European Court of Human Rights granted urgent interim measures ordering the Government of Russia to refrain from military attacks against ‘civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects such as schools and hospitals, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops,’ as the military action which commenced on 24 February 2022 gives rise to a real and continuing risk of serious violations of the European Convention on Human Rights (‘ECHR’). The Human Rights Council, voted, on the 4th March 2022, to create a Commission of Inquiry on Ukraine. In terms of international criminal law, on 28 February 2022, the International Criminal Court (‘ICC’) Prosecutor, Karim Khan QC, announced that he would be seeking authorisation to open an investigation into the situation in Ukraine, on the basis of the December 2020 conclusions of the Office of the Prosecutor’s preliminary examination (Ukraine accepted the jurisdiction of the ICC by declarations under Article 12 (3) of the Rome Statute giving the ICC jurisdiction over crimes perpetrated in the territory of Ukraine from November 2013 onward). The investigation was opened on 2 March 2022, following the never-seen-before referral by 39 Member States, and covers any allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from 21 November 2013 onwards. While the crime of aggression cannot currently be investigated by the ICC with regards to the Ukrainian situation, as Russia is not a State Party to the Rome Statute, and the UN Security Council has not, and cannot refer the situation, a number of high-profile legal and political actors, with support from the Ukrainian Minister for Foreign Affairs, Dmytro Kuleba, have called for a special tribunal for the punishment of crime of aggression in Ukraine to be created which is complementary to the ICC investigation, and the European Court of Human Rights’ decisions (although the legal basis for the tribunal and jurisdiction are still yet to be determined). Discussions are also being held at the UN level as to whether the UN General Assembly or Secretary General could establish a tribunal based on a treaty with Ukraine.
While the ICC, or an established tribunal, may only be able to try some high-profile perpetrators (or those most responsible) for international crimes, international criminal law (and thus international law more generally) can also be promoted through prosecution of perpetrators (including lower-level perpetrators) for international crimes (including, in some cases, aggression) by domestic jurisdictions under the principle of universal jurisdiction. Poland, for example, has commenced an investigation concerning crimes committed on the territory of Ukraine, including the ‘initiation of war of aggression’ (Article 117 Polish Criminal Code), and several war crimes (Articles 122, 123 and 125 Polish Criminal Code). Ukraine, itself, has taken steps to align its domestic law and framework with international criminal law standards (including the adoption of Bill 2689 (which still needs Presidential approval), and the creation of a War Crimes Unit and investigative unit), has already seen some conflict-related crimes convictions, and can, in principle and depending on how the conflict develops, continue its investigations and prosecutions.
International law may not itself deter Putin from continuing his invasion in Ukraine, but the international community (with the support of the Ukrainian government) is harnessing international law to respond to the Russian invasion in Ukraine with unprecedented speed and scale. This should be the turning point – if the consequences to all those who seek to perpetuate war become more concrete, if perpetrators of international crimes are brought to justice and held accountable, and if international law is enforceable, then the power of international law will be the deterrent going forward.