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By: Dan Kuwali, Affiliated Professor, Raoul Wallenberg Institute of Human Rights and Humanitarian Law.
Russia’s invasion of Ukraine, which has turned into a brutal war of attrition, has been widely condemned as a brazen violation of a central tenet of the Charter of the United Nations (UN) that requires the Members States to refrain from the “use of force against the territorial integrity or political independence of any state.” Moscow contends that “more than half of world population,” which includes the world’s most populous nations – China and India, did not condemn the invasion. Supporters of the invasion commend it as a step to end the “Imperialist Atlanticist.” However, a majority of states have generally stood in solidarity with the people of Ukraine, who are enthusiastically resisting the assault on their homeland, and with the brave Russian citizens who are publicly voicing their opposition to the unprovoked war.
Conditions for exercising the right to self-defense
Among other grounds, the pretext Moscow gave for a “special military operation ” was to “free ethnic Russians from genocide” in Ukraine and to honour the Minsk Agreement that was signed in the aftermath of Russia’s annexation of Crimea in 2014; and “liberate and defence” the Donbas region and the people of Donetsk and Luhansk, which are breakaway regions in south-eastern parts of Ukraine. In a desperate attempt to make his case, Russian President Vladimir Putin inappropriately invoked Article 51 of the UN Charter, which provides the “inherent right of individual or collective self-defense” to protect the right to self-determination in Article 1. Putin also highlighted his intention to stop the North Atlantic Treaty Organization (NATO) expansion toward Eastern Europe.
Legal analysis shows that Russia’s attack against its neighbour is a manifest violation of the principle of prohibition of the use of force under Article 2(4) of the UN Charter. Russia cannot justify its military intervention under the garb of collective self-defense in Article 51 of the UN Charter without a prior armed attack by Ukraine. Further, Donetsk and Luhansk are not UN member states as it is a precondition for exercising the right to self-defence.
Even if Russia argues that its action was ‘anticipatory self-defence,’ this unsettled concept in International Law does not align with the letter and spirit of Article 51 of the UN Charter. In any event, Russia has not reported its action of ‘self-defense’ to the UN Security Council as required by the Charter. It was Ukraine that complained to the global body.
Putin’s allegation that Ukraine was committing “genocide” against Russians in Donetsk and Luhansk is baseless given the lack of evidence that Ukraine engaged in any of the prohibited acts defined under the Genocide Convention. Certainly, there has been no evidence of an intent by Kyiv to destroy in whole or in part any group that is protected by the Genocide Convention in eastern Ukraine. Ukraine has since filed a claim against Russia in the International Court of Justice (ICJ), alleging that Moscow misinterpreted the Genocide Convention to justify the invasion of Ukraine. In its Order on provisional measures, which has a binding effect, the ICJ directed Moscow to
“immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.”
A crime of aggression
While many observers have welcomed the International Criminal Court (ICC) investigations into war crimes and crimes against humanity in Ukraine, some have also demanded an immediate investigation of the crime of aggression to target the main culprits. The difficulty with crimes against humanity and war crimes is the requirement for the prosecution to show a direct connection between the act that amounts to the crime and the perpetrator to prove the commission of a crime. Focusing only on crimes against humanity and war crimes will lead to a convoluted process of prosecuting perpetrators at operational and tactical levels leaving out the strategists and architects of the “ illegal war.”
Aggression is a crime that focuses on leaders because of the belief that it can only be committed by those with the power to shape a state’s policy of aggression rather than those who carry it out. To illustrate how serious the crime is, the judges of the International Military Tribunal(IMT) at Nuremberg noted that initiating
“a war of aggression is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulative evil of the whole.”
The military intervention appears to meet the definition of aggression, a crime under the Rome Statute of the ICC. Article 8bis (1) of the Rome Statute defines the crime of aggression as “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity, and scale, constitutes a manifest violation” of the UN Charter.
The Rome Statute contains an exhaustive list of acts of aggression that can give rise to individual criminal responsibility, including invasion, military occupation, annexation by using force, bombardment, and military blockade of ports.
In the absence of a trigger necessary to exercise the right of self-defense, which is an actual armed attack, Russia’s act does not have a solid justification to avoid falling within the ambit of the definition of the crime of aggression in the Rome Statute. The justification that Moscow seeks to protect ethnic Russian speakers in Ukraine does not hold but applies against its previous intervention strategy. Both the Genocide Convention and the UN Charter do not warrant the use of force to remedy acts of genocide or serious human rights abuses perceived by Moscow.
The ICC does not have jurisdiction for nonparties over the crime of aggression, barring an unlikely UN Security Council referral where Russia is a Permanent Member that cannot seek to hang itself. The fact that Russia has not yet ratified the Rome Statute creates an obstacle for the ICC to exercise its jurisdiction over the crime of aggression against Moscow. However, Ukraine and several other States have domestic laws that would allow the prosecution of perpetrators of the crime of aggression. Moscow’s act of aggression tests the resolve of the international accountability institutions.
The NATO precedents
Previous NATO interventions seem to have played a part in motivating Putin to invade Ukraine. In 1999 NATO intervened with an intensive bombing campaign in the war between Serbia and its breakaway province of Kosovo to stop Serbia from the ethnic cleansing of the majority population of Albanian Kosovars. Kosovo unilaterally declared independence in 2008, enjoying recognition from 97 UN Member States, mainly Western capitals.
This watershed event infuriated Putin, who saw it as a precedent for the subsequent Russian invasion of Georgia in August 2008 under the pretext of protecting Russian speakers and passport holders in the breakaway province of South Ossetia. Russia immediately recognized the independence of South Ossetia and Abkhazia. Western countries were incensed but seemed to have acquiesced to Moscow’s action.
Crimea, a province of Ukraine, declared independence in 2014 following an incursion by Russia and a popular referendum. The subsequent declaration of independence cites the Kosovo precedent as one of the legal justifications for the cessation leading to Moscow subsequently annexing Crimea.
Just before the Russian invasion of Ukraine, on 15 February 2022, Moscow recognised the independence of the Donetsk People’s Republic and the Luhansk People’s Republic, both of which are in Donbas, again citing the Kosovo precedent. Russia’s actions appear to be a replay of its 2014 manouvres in Crimea.
States’ unilateral and collective obligation to prevent atrocities
In a veiled reference to Moscow’s breach of its international obligations as a permanent member of the UN Security Council, Kenya’s ambassador in New York, Mr. Martin Kimani, bemoaned that the UN Charter “continues to wilt under the relentless assault of the powerful. In one moment, it is invoked with reverence by the very same countries who then turn their backs on it in pursuit of objectives opposed to international peace and security.” Mr. Kimani poignantly pointed out the problem of might makes the right approach in international relations. If leaders cannot lead by example, the collective voice of followers should fill the void and ensure that right makes might.
On 2 March 2022, the UN General Assembly overwhelmingly condemned Russia’s invasion of Ukraine and called for its troops to immediately and completely withdraw. In a stymied Security Council, the UN General Assembly should step up its efforts to help the parties resolve the conflict and protect civilians. Countries that do not comply with ICJ orders can be referred to the UN Security Council, where Russia holds veto power.
Under the Uniting for Peace Resolution, the General Assembly can recommend measures in situations of threats to the peace, breaches of the peace, and acts of aggression, including the use of armed force, in cases of inaction resulting from the lack of unanimity of the permanent members of the Security Council. However, decisions under the Uniting for Peace procedure are not legally binding on the parties as the powers of the General Assembly are limited to recommendations.
Considering the incremental rise in abstentions when Moscow was expelled from the UN Human Rights Council by the General Assembly due to systematic human rights violations, it is not certain that the necessary two-thirds majority in the Assembly may be achieved in that case. Russia was also expelled from another human rights body — the Council of Europe, Europe’s largest intergovernmental organization.
Ukraine, where the atrocities are occurring, declared the crimes to constitute genocide. US President Joe Biden also described the atrocities as genocide because Moscow was trying to “wipe out the idea of even being a Ukrainian.”
Whether or not these atrocities allegedly committed by Russian forces against civilians are found to be acts of genocide, they are illegal under international law and warrant a response from the international community. By failing to unite around the aim of confronting mass atrocities on the scale of Ukraine that undoubtedly pose a threat to international peace and security, the Council is betraying the very ideals that inspired the founding of the UN. Otherwise, the situation is akin to expecting the wolves to care for the sheep.
The Security Council has the authority and a legal obligation, which ‘it cannot evade or avoid,’ to stop or prevent atrocities on behalf of the international community. The language of Article 24 of the UN Charter imposes a legal duty of trust requiring the Security Council and its Members to use their legal powers for the maintenance of international peace and security in accordance with the ‘Purposes of the UN.’
Further, UN Security Council members have treaty obligations, severally or jointly, to promote and protect human rights and humanitarian norms. For example, the Convention on Torture and the Geneva Conventions each impose obligations among State Parties to prevent, prosecute and punish perpetrators of the crimes they enumerate. The Security Council has a duty to authorize such action because denial in cases of mass atrocity crimes would presumably contradict the principles and purposes in Articles 1 and 2 of the UN Charter. All UN Member States, including the veto-holders, have a responsibility to enable the UN to fulfill its purposes under the Charter.
It should be remembered that in the Bosnia and Herzegovina v. Serbia and Montenegro case, the majority of the ICJ judges found that although Serbia had not itself committed genocide in Srebrenica, it did have some culpability for failing to prevent genocide perpetrated by the Bosnian Serb militia and ordered Serbia to ‘immediately take effective steps to ensure full compliance with its obligations under the Genocide Convention. This is why members of the Security Council, severally and collectively, should act to compel the Russian Federation to comply with the ICJ Order to stop the aggression, end hostilities, and withdraw its forces from Ukraine.
Both Russia and Ukraine are members of the Organization of Security and Cooperation in Europe (OSCE), the world’s biggest security organization created at the height of the Cold War with the promise of maintaining peace and security for the European continent. Based on Article 52(1) of the UN Charter, the 57-member OSCE has a mandate of dealing ‘with such matters relating to the maintenance of international peace and security as are appropriate for regional action. The concerted effort of OSCE and the UN General Assembly is key to compelling Moscow to end hostilities and may curtail the discretionary room of the Security Council to remain indecisive in the face of aggression and atrocities by Moscow.