Author : Sonny Lafrontiere
 |
| Source : Los Angeles Times |
Introduction
This article aims to draw attention to a crucial
aspect of the Ukraine crisis that seems to have been overlooked in various
analyses and perspectives. Since the invasion of Ukraine on February 24th,
extensive discourse has arisen surrounding the so-called "special military
operation"- its purposes, effects, and associated elements such as the
geopolitical proximity of Ukraine vis-a-vis NATO, the role of ethnic Russian
Ukrainians, and the demographic changes in Europe stemming from Russian and
Ukrainian emigration. However, it appears that these analyses have failed to
address the taboo of armed conflict, particularly in Europe, which international
law has sought to prevent. Some have argued for the realist theory of balance
of power and the liberal theory of interdependence. Diplomacy serves to
safeguard international law from geopolitical forces. Accordingly, the question
arises, "Can he really do that?", When taking into account the
related international law, binding treaties, conventions, and accepted customs
meant to prevent such actions. This article seeks to describe how international
law, particularly concerning military operations, was and still is intended to
restrain rogue nations, such as Russia.
Consequences
After denying
amassing troop buildups on the border of Ukraine, on the Morning of the 24th of
February, President of the Federation of Russia Vladimir Putin gave his jus
ad bellum[1]
for attacking Ukraine in a speech, saying, amongst other things: That
Ukraine is not a sovereign nation – essentially undermining
Ukraine’s natural self-determination claim, While the Russian ambassador referred
to Article 51 of the UN Charter. The power UN rests on its charter
which gives it its supra-national character. On the 25th of February
however, the Security Council failed to publish a resolution denouncing
Russia’s invasion of Ukraine due to Russia’s veto power. Interestingly,
Russia’s veto violated
the article 27(3)[2],
which in turn prompted Ukraine to
remind the Council of article 6[3] of the UN charter. Everyone is familiar with the Treaty of
Westphalia of 1648 when referring to the international law of sovereignty,
which applied to the European world order. Yet, much less familiar with
the Treaty of Utrecht around 60 years later which focuses the sovereignty to a
fixed physical aspect of a nation. The Kellogg-Briand Pact is another treaty that
outlawed the use of war which, surprisingly, the United States ratified, it was
then signed in Paris in 1928. Of course, the declaration that Ukraine is not a
sovereign nation is countered by the fact that it has a stable government,
controls a definite territory ,and enjoys the
acquiescence of the population. It remains to be said that States will find it
to be legal to use force in only two situations according to Chapter VII
article 51[4] and 42[5] of the UN charter in
instances of humanitarian intervention. What is curious is that, Putin had used
the language of ‘special military operation’ to avoid exposing Russia to
Article 2 of the UN charter with General Assembly resolution 2131[6] and keep Article 2(7)[7] of the UN charter in play.
Not missing
a beat, on the 26th of February, Ukraine had taken to the International Court
of Justice, under the article 9[8] of the Genocide Convention
of 1948 against Russia and has called for provisional measures to be taken
(scheduled to be taken on the 7th of March) these provisional
measures requests were done so on the grounds of two rights of the International
Court of Justice, first, the right not to be subjected to a false claim of
genocide and, second the right not to be subjected to another State’s military
operations. This action serves to dispel the false allegation that Ukraine was
conducting any sort of ethnic cleansing of Russian-born Ukrainians, thus
annulling the “justification” that Russia had cooked up, crushing the
‘responsibility to protect’ that Putin cloaked his invasion in ergo declaring
the invasion of Ukraine unlawful. This declaration would oblige Russia to abide
by the 1st article of the Geneva Convention to cease any engagement
in genocide. The ICJ ruled on the 17th of March that
Russia cease all military operations in Ukraine.
Due to the
failure of the Security Council to pass the
resolution condemning Russia’s invasion, on the 2nd of March, the
United Nations General Assembly arranged to vote on a resolution[9] to “deplore” and not
condemn Russia’s invasion of Ukraine, demanded that it cease its use of force
and also remove its forces from Ukrainian regions while declaring it a violation
of Article 2(4) of the UN Charter. On the same day, the chief prosecutor of the
International Criminal Court, Karim Khan, announced an investigation into
alleged crimes in Ukraine and personally traveled to Ukraine to
investigate.
Nota Bene The
UN General Assembly (which is more linked to soft law) cannot pass binding
resolutions like the Security Council can but could in any case require states
member of the UN to help Ukraine in military and foreign aid terms,
it can also recommend economic and strategic sanctions against a specific
nation if it doesn’t comply with international law.
In Putin’s jus
in bello[10], International Humanitarian
Law (an expansion of international law) has gotten ahold of the general
dossier, as is found that war crimes have been committed, and in these
transgressions, not only States will be faulted but non-state actors such as
mercenaries and individuals such as Putin himself. Instances of such atrocity
crimes (such as targeting civilians and hospitals) may even reach a level of genocide accusations. The codification of war crimes has been enshrined in four Geneva conventions[11] (in 1947, 1977, 1977, 2005)
Increasingly though, crimes against humanity have been the dominant source of
worry as it is made clear that Russia has been repeatedly, targeting civilian
populations on a wide scale. Ipso Facto on the 7th of April,
41 countries have referred Russia to the International Criminal Court; at this
point, it is important to note that the International Criminal Court has
jurisdiction over general war crimes, crimes against humanity, and genocide,
but not over crimes of aggression (Ukrainians have mentioned however that the
crime of aggression army be subject to a special or ad hoc tribunal). Yet,
neither Ukraine nor Russia has not ratified the 1998 Rome Statute of the ICC
meaning that it is not to be bonded by such a judicial body (though in 2014
they have used a provision that allows
non-member states to accept the jurisdiction of the ICC). This means that the
crime of aggression will have a harder time being prosecuted than war crimes
and crimes against humanity in Russia and Ukraine even though both have
references to crimes of aggression in their domestic law. Yet, Karim Khan has
declared that without sufficient evidence, individuals will not receive his
immediate attention regarding prosecution.
Russia’s
war crimes have not only about its tactics but have also concerned the use of
weapons, as the reported use of cluster munitions[12] and vacuum bombs[13] would also constitute war
crimes.
On the 20th
of September, Pro-Russian separatists in Luhansk and Donetsk, with those
occupying Kherson and Zhaporiza with have signaled to create a referendum for the annexation of such
regions by Russia, the international community has promised not to accept the
result calling them illegal. A vox populi that would be flawed during a
war.
Ukraine
though is not without its misdeeds in international law, especially in the treatment of Persons of War, it has been found
that Ukraine has been parading
captured Russians in front of the media to portray the Russians
as being manipulated killers, yet these maneuvers are a breach of article 13[14] of the Geneva Convention.
Without
referencing the initial aggression of 2014, we may also keep in mind that Russia
the 2022 aggression with a decree recognizing the independence of Donetsk and
Luhansk People’s Republic, it was quickly followed by a declaration by the
Secretary-General that this maneuver was a violation of the territorial
integrity and sovereignty of Ukraine.
Refugee law
has also been bent to accommodate Ukrainian refugees, exempli gratia, the
European Union put in practice its 2001 Temporary Protection Directive[15], while the US awarded the
Ukrainians living in its borders Temporary Protected Status. Another tricky
legal situation is the legal status of foreign combatants that have volunteered
to fight for the Ukrainian army, if American-born
fighters were to signal that they are fighting on behalf of the United States
it could imply that America has legally joined the fight at least indirectly.
Bibliography
https://www.cfr.org/article/can-russia-be-held-accountable-war-crimes-ukraine
[1] Rightful recourse to war
[2]
Article 27, paragraph 3 of the UN charter states that “a party to the dispute
shall abstain from voting”
[3]
Article 6 of the UN Charter states that “a member of the UN which has
consistently violated the principles contained in the present Charter may be expelled
from the UN by the General Assembly upon the recommendation of the Security
Council.”
[4]
Article 51 of the United Nations provides the use of military force in
instances of self-defense.
[5]
Article 42 of the United Nations provides the use of military force when
sanctioned by the Security Council.
[6] General Assembly
resolution n2131 states that ‘no State has the right to intervene, directly or
indirectly, for any reason whatsoever, in the internal or external affairs of
another State.’
[7] Article 2(7) of
the United Nations charter states that ‘Nothing contained in the present
Charter shall authorize the United Nations to intervene in matters which are
essentially within the domestic jurisdiction of any state’
[8] Article 9 of the Geneva Convention states that “disputes between the Contracting Parties relating to the interpretation, application or fulfilment of the present Convention, including those relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.’
[9]
The ‘United for Peace’ resolution.
[10] Rightful
conduct of war.
[11]
Global Politics by Heywood.
[12]
Ammunition that dispersers fractions of little explosives for a maximum of
reach.
[13]
A thermobaric weapon that sucks the air out, producing a suffocating feeling.
[14]
Article 13 of the Geneva Convention states that prisoners of war must at all
times be humanely treated and must at all times be protected, particularly
against acts of violence or intimidation and against ’insults and public
curiosity’.
[15]
This policy allows for Ukrainians to stay and working in the EU for at least a
year.
Edited by : Ayushi Attri
Author is an Alumnus of Amity Institute of International Studies.
