International Law and Human Rights in the face of Russia’s Invasion of Ukraine.

What is International Law?

According to Jeremy Bentham’s classic definition, international law is a collection of rules governing relations between sovereign states. International Law has however evolved so much from the time this definition was given until now. It is no longer accurate to view international law as simply a collection of rules; rather, it is a rapidly developing complex of rules and influential—though not directly binding—principles, practices, and assertions coupled with increasingly sophisticated structures and processes.

The range of subjects and actors directly concerned with international law has widened considerably, moving beyond the classical questions of war, peace, and diplomacy to include human rights, economic and trade issues, space law, and international organizations. Although international law is a legal order and not an ethical one, it has been influenced significantly by ethical principles and concerns, particularly in the sphere of human rights.

The primary characteristic of laws is that it creates Rules -rights and obligations- for every party bound by such law. Russia is bound by and has violated the Fundamental Rules of International Law. What Are the Consequences?

In his speech on the 24th of February, Vladimir Putin formally announced his invasion of Ukraine and further sought to legitimize/justify this action under international law.

The question that begs for answers at this point is whether or not the argument that Russia was acting within the tenets of international law when it invaded Ukraine holds any merit.

Further: what are the consequences of violating international law? And is international law of any consequence at all? These are the questions this article seeks to answer.

Russia’s invasion of Ukraine violates Article 2(4) of the UN Charter, a central tenet of the charter that requires UN member states to refrain from the use of force against the territorial integrity or political independence of any state. The said Article provides thus, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.

The suggestion by President Vladimir Putin and other Russian officials that Russia’s use of force is justified under Article 51 of the UN Charter has no support in fact or law and under no scenario is Russia’s invasion of Ukraine legal in International Law. According to International Law, self-defense is the only justification for the use of force against another country. Article 51 of the UN Charter provides that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.” However, there is no evidence to support the fact that Ukraine committed or threatened to commit an armed attack against Russia or any other UN member state and even if Ukraine planned to attack Russia or any UN member state, this defense would still not avail Russia as there isn’t a thing as preventive self-defense. On the other hand, even if Russia could show that Ukraine had committed or planned to commit attacks on Russians in the Ukrainian regions of Donetsk and Luhansk, Article 51 would not permit an action in collective self-defense, because Donetsk and Luhansk are not UN member states. Indeed, they do not even qualify as states under international law, despite their purported secession from Ukraine and Russia’s recognition of them as independent.

Putin’s statements that Ukraine was committing “genocide” against Russians in Donetsk and Luhansk, although a thinly veiled effort to justify Russia’s use of force in the language of international law, is also not supported by the facts and would not, in any case, give Russia a right to launch an invasion of Ukraine. The Genocide Convention defines genocide as certain, specified actions intended to destroy in whole or in part a national, ethnic, racial, or religious group. There is no evidence that Ukraine engaged in any of the defined actions and certainly no evidence of an intent to destroy in whole or in part any group in eastern Ukraine. Even if the Ukrainian government had committed human rights abuses against Russians in eastern Ukraine, neither the Genocide Convention nor the UN Charter authorizes convention parties or UN member states to use force to remedy acts of genocide or serious human rights abuses.

Putin used much of his speech to accuse the West of similar violations of international law. This included the military interventions by the United States and others in Kosovo, Iraq, Libya, and Syria, which were illegal or of dubious legality under international law.

It is important to state at this point that a previous violation of international law is not a defence for a new violation: one crime does not excuse the next.

Finally, Putin has claimed that Ukraine cannot be considered an independent state. Yet, in addition to the fact that Ukraine fulfills all the criteria for statehood, Russia itself in the legally binding Budapest Memorandum of 1994 undertook “to respect the independence and sovereignty and the existing borders of Ukraine”.

Accordingly, there is no merit in any of Russia’s justifications.

Relevant Consequences of violating International Law

The prohibition on the unjustified use of force is the cornerstone of modern international law. However, that does not necessarily mean that there is any tribunal that can pass judgment on Russia’s violation. The International Court of Justice, which deals with disputes between states, can only intervene in cases where the countries involved agree that it should have a role. Ukraine has already brought a case against Russia for its attacks since 2014, but it was only able to do so for breaches of conventions on terrorist financing and racial discrimination rather than for a violation of the UN Charter.

Aggression is also a crime incurring individual responsibility. Defendants were prosecuted for aggression in the Nuremberg and Tokyo trials after World War II. The statute of the International Criminal Court (ICC), which was established in 1998 to prosecute individuals for violations of international criminal law, was amended in 2010 to establish its jurisdiction over aggression. The crime is defined in the ICC statute as the planning, preparation, initiation, or execution by a senior political or military leader of an act of aggression that manifestly violates the UN Charter.

Ukraine has accepted the jurisdiction of the ICC, even though it is not formally a member of the court. However, there are some limitations to the jurisdiction of the Court. One of these limitations is that the ICC can only prosecute cases of aggression when both the attacking state and the victim state are members of the court. Russia has not joined the ICC. And Ukraine has accepted ad hoc jurisdiction but has not ratified the court’s statute. Accordingly, Putin and senior officials need not fear prosecution before the ICC for this crime.

Some countries allow prosecution of the crime of aggression in their national law under the principle of universal jurisdiction. While Putin and senior Russian officials might be immune from such prosecution as long as they remain in office, they could face prosecution if they visited certain countries after leaving power.

Meanwhile, Russian commanders and troops could face prosecution for any war crimes they commit during the invasion. In the case of war crimes, crimes against humanity, and genocide, the ICC has jurisdiction if the act in question takes place on the territory of a state that has accepted this jurisdiction, even when it is committed by a citizen of a state that has not joined the court. The ICC is already examining possible crimes in Ukraine since 2013, including those committed by Russian troops. Russian soldiers could face charges if they deliberately target civilians, use disproportionate force in attacking military targets, or summarily execute prisoners. This could be a real concern given the record of Russian forces in Syria, where monitoring organisation Airwars has documented 4,621 incidents in which Russian attacks killed civilians. Shortly after the Russian invasion of Ukraine started, the ICC’s prosecutor stated that he would be monitoring the situation closely, and noted that ordering or inciting crime made individuals liable to prosecution. Every effort should be made to document and preserve evidence of any crimes that forces commit during the course of hostilities.

International Institutions Respond to Russia’s Actions

In addition to financial sanctions imposed bilaterally by the United States and numerous other countries, Russia is likely to face widespread condemnation and isolation in international bodies. Very few governments and law experts will believe that Russia’s actions are permissible under international law. On Friday, the 25th of February 2022, the Council of Europe suspended Russia’s participation in its Committee of Ministers and its Parliamentary Assembly. Meanwhile, the UN Security Council voted on a binding resolution condemning the invasion and requiring Russia to cease its military actions and withdraw from Ukraine. But Russia, as a permanent member of the Security Council, vetoed the resolution.

On Sunday the 27th of February 2022, the Security Council voted 11-1 (with Russia opposed and three members abstaining) on a nonbinding resolution calling on the UN General Assembly to hold an emergency special session to consider Russia’s actions. This Security Council resolution comports with UN General Assembly Resolution 377(V) of 1950 (the so-called Uniting for Peace resolution), which resolved that in the case of a deadlock in the Security Council, the General Assembly shall “consider the matter immediately with a view to making recommendations to members for collective measures.” The General Assembly is likely to overwhelmingly adopt a resolution opposing Russia’s actions as a threat to Ukraine’s territorial integrity, sovereignty, and political independence, as it did in 2014 after Russia annexed Crimea. The General Assembly could also mandate a UN investigation of Russia’s actions, urge member states to impose sanctions on Russia, or recommend that Russia be expelled or suspended from certain UN bodies.

In addition, Ukraine also filed another claim against Russia in the International Court of Justice (ICJ) on the 27th of February, alleging that Russia misinterpreted the Genocide Convention to justify the invasion of Ukraine. Putin and other Russian officials could face an investigation by the ICJ for war crimes committed during the invasion. Although Russia is not a party to the Rome Statute, which established the International Criminal Court (ICC), Ukraine has accepted the ICC’s jurisdiction for offenses that have occurred on its territory since 2013 (other than the crime of aggression, for which the ICC does not have jurisdiction for nonparties).

 Is International Law A Toothless Bulldog?

Unlike in municipal laws, there is no standing international police force to enforce international law. Compliance is primarily in the hands of countries themselves.

The International Court of Justice, created by the U.N. and located in Hague, Netherlands, decides disputes between countries, including alleged violations of the U.N. Charter. But only 73 countries out of 195 have accepted the court’s jurisdiction.

The U.N. Security Council also has the authority to authorize the use of force under the U.N. Charter in order to maintain international peace and security. This option is unrealistic in the situation of Ukraine because Russia has a permanent seat on the council — along with the other four permanent members: the U.S., U.K., France, and China — and thus holds veto power over any decision.

Finally, either the U.N. Security Council or individual countries may impose economic or diplomatic sanctions if necessary, as the U.S. and European countries have done. But such actions can have only an indirect impact on deterring or ending a war.

There is probably no law, international or domestic, that enjoys universal compliance. The challenge to enforce international law remains — a challenge laid bare most recently and blatantly by Russia’s invasion of Ukraine.

It should however be noted that Russia and Putin may be breaking international law without immediately facing legal proceedings, but this does not mean international law is irrelevant and of no effect. Countries that have condemned Russia’s actions and taken measures to sanction it are not only trying to protect Ukraine and its citizens but also defending the principle that relationships between states should be shaped by legal principles rather than merely the balance of power. The justification for sanctions is that the targeted individual or entity is responsible for a breach of international law. The references to international law that so many leaders have made in their statements on the crisis show its importance as a reference point and a standard to guide responses to Russia’s actions.

Does International Human Rights Law Still Apply In Ukraine?

Another question that begs for an answer is whether or not the human rights of Ukrainians would still be upheld in the face of hostilities.

It seems as though the rights of Ukrainians and indeed foreigners living in Ukraine have been put on hold until after the hostilities but this isn’t the case. International human rights law remains in effect and continues to apply at all times, including during armed conflict. In some circumstances, however, a humanitarian law norm may trump a human rights norm, as the lex specialis, or the more specific norm for the particular circumstance.

Ukraine and Russia are both parties to a number of regional and international human rights treaties, including the European Convention on Human Rights (ECHR), the International Covenant on Civil and Political Rights (ICCPR), and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). These treaties outline guarantees for fundamental rights, many of which correspond to the rights to which combatants and civilians are entitled under international humanitarian law (e.g. the prohibition on torture and inhuman and degrading treatment, the requirements for nondiscrimination, the right to a fair trial).

While both the ECHR and the ICCPR permit some restrictions on certain rights during wartime or an officially proclaimed public emergency “threatening the life of the nation,” any reduction in rights during a public emergency must be of an exceptional and temporary nature and must be limited “to the extent strictly required by the exigencies of the situation.” Certain fundamental rights—such as the right to life and the right to be secure from torture and other ill-treatment, the prohibition on unacknowledged detention, the duty to ensure judicial review of the lawfulness of detention, and rights to a fair trial—must always be respected, even during a public emergency.

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References:  

  1.  Ingrid Wuerth, International Law and the Russian Invasion of Ukraine (Unpublished Article on https://www.lawfareblog.com/international-law-and-russian-invasion-ukraine Accessed on the 2nd day of March 2022)
  2.  Hurst Hannum, International Law says Putin’s war against Ukraine is illegal. Does that matter? (Unpublished Article on https://theconversation.com/amp/international-law-says-putins-war-against-ukraine-is-illegal-does-that-matter-177438 Accessed on the 2nd day of March 2022)
  3. Anthony Dworkin, International Law and the invasion of Ukraine (Unpublished Article on https://ecfr.eu/article/international-law-and-the-invasion-of-ukraine/?amp Accessed on the 2nd day of March 2022)
  4. John B. Bellinger III, How Russia’s Invasion of Ukraine Violates International Law (Unpublished Article on https://www.cfr.org/article/how-russias-invasion-ukraine-violates-international-law?amp Accessed on the 2nd day of March 2022)
  5. Malcolm Langford and Geir Ulfstein, Russia Has Violated the Fundamental Rules of International Law. What are the consequences? (Unpublished Article on https://blogs.prio.org/2022/03/russia-has-violated-the-fundamental-rules-of-international-law-what-are-the-consequences/ Accessed on the 2nd day of March 2022)
  6. Human Rights Watch, Russia, Ukraine, & International Law: On Occupation, Armed Conflict and Human Rights (Unpublished article on https://www.hrw.org/news/2022/02/23/russia-ukraine-international-law-occupation-armed-conflict-and-human-rights Accessed on the 6th day of March 2022)

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