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An international law perspective: Russia’s invasion of Ukraine.

On 24 February 2022, eight years after seizing Crimea, Russia began a ‘special military operation’ in Ukraine with the apparent aim of acquiring the whole of Ukraine and (re-)absorbing it into the Russian Federation.'

'In the middle ages, Kiev was at the heart of ‘Kievan Rus’, a federation that included parts of present-day Russia and Belarus, and which is regarded as a key part of their common cultural heritage. Ukraine became part of the Russian Empire and later the USSR'.

In 1991, Ukraine became an independent sovereign country. Ukraine's 'eastern region of Donbas has long had a predominantly Russian-speaking population; when Russia invaded Crimea in 2014, pro-Russian separatist groups in Donbas declared the independence of the Donetsk and Luhansk People’s Republics (DPR and LPR), and with Russian military support have been fighting the Ukraine government ever since. Three days before the 2022 invasion, Putin recognised the two Republics as independent states.'

LSJ online has provided an extensive article written by Dr Alison Pert on the international law perspective on Russia's invasion of Ukraine providing an insight into the complex legal issues, summarised as follows.

1. Prohibited aggression

The use of armed force is prohibited by art. 2(4) of the United Nations Charter and customary international law, except in circumstances of lawful self-defence, or when authorised by the UN Security Council.

2. The prevention of genocide

Russia has accused Ukraine of committing genocide in Donbas, and had declared that Russia’s military action was necessary to protect the population in Donbas.

Ukraine is challenging Russia's allegation of genocide in Donbas in the International Court of Justice ("ICJ"), arguing that under the Genocide Convention, a false allegation of genocide provides no lawful excuse for Russia’s actions.

On 16 March 2022, the ICJ found this argument ‘plausible’ for the purposes of indicating provisional measures, ordering Russia to suspend its operation.

Although Russia refused to participate in the ICJ hearing, Russia sent a written submission to the Court, denying that it had used the alleged genocide as a justification for its operations, asserting that it was acting in self-defence.

3. Self-defence

For a state to use force lawfully in self-defence, it (or another state which has sought its assistance) must have been the victim of an armed attack, and it can only respond with such force as is necessary and proportionate. It must also report its actions to the UN Security Council, which Russia did on 24 February.

It is unclear what exactly Russia is claiming. Russia's letter to the Security Council refers to an attached speech by Putin, which obliquely raises three possible justifications: defence of Russia itself, defence of the Donetsk and Luhansk People’s Republics ("DPR" and "LPR"), and defence of Russian nationals in Ukraine.

4. Russia's irredentist claims

Russia has justified its actions based on an irredentist claim to restore Russia to its former glory by reclaiming Ukraine and other territories populated by ethnic Russians. Putin on record has decried the collapse of the Soviet Union and the loss of Soviet territories including Ukraine, which he says was historically Russian. He seems to assert that this, and his claim that Russia and Ukraine are one people, somehow give Russia the legal right to use force to ‘reclaim’ its lost territories. There is no basis in international law for such an argument. Ukraine is a sovereign state, and one of the principal attributes of sovereignty is the right to enjoy territorial integrity and political independence.

5. Russia's recognition of DPR and LPR - Remedial secession

Russia’s recognition of the two republics as independent states raises other issues of international law. As a general rule, states are free to recognise or not recognise a new state. However, where the putative state is formed through secession from a parent state (Ukraine), without that state’s consent, then recognition may be a violation of Ukraine’s sovereignty. Putin seems to claim that the Russian-speaking population of Donbas are ‘people’ entitled to self-determination and to remedial secession because of the alleged genocide against it committed by Ukraine. But all the available evidence suggests that the conditions for remedial secession are not met in eastern Ukraine.

6. Statehood

Even if entitled to secede, an entity must meet certain criteria in order to constitute a state in international law. The minimum, ‘Montevideo’ criteria are that it must have a permanent population, a territory, an effective government, and independence.

The DPR and LPR may have a population and a defined territory, but their self-declared governments do not control the whole of that territory and they are so heavily supported by Russia that they could not be said to be independent

A further condition for statehood is that the state must not have been created in violation of international law – notably a jus cogens norm such as the prohibition of aggression. This is complemented by a duty on all states not to recognise the result of a jus cogens violation, as illustrated by the UN General Assembly’s call on member states not to recognise as lawful Russia’s seizure of Crimea in 2014. Russia’s documented military support of the separatists in the Donbas region since 2014 would most likely also qualify as an unlawful use of force against Ukraine, precluding international recognition of DPR and LPR as new states.

7. The conduct of the hostilities Statehood

a. The law of armed conflict/international humanitarian law ('IHL').

Russia and Ukraine are parties to nearly all the major treaties on the laws of war; media reports suggest that several breaches of these have occurred, particularly by Russia.

b. The intentional targeting of civilians and civilian objects.

The destruction of many residential buildings, and civilian objects such as theatres and schools, suggests that many of the Russian attacks were deliberate and prohibited in IHL. Russia had claimed that a civilian building was being used by Ukrainian forces; if true, Russia would need to show that the damage to civilians and civilian objects would not be excessive in relation to the military advantage gained by attacking the building.

c. Intentionally targeting cultural or medical facilities is prohibited.

As Ukrainian forces retake previously Russian occupied areas, evidence is emerging that suggests that Russia has targeted and executed unarmed civilians.

d. Indiscriminate attacks.

Russia’s apparent use of ‘dumb bombs’ (bombs that lack precision guidance systems), may constitute indiscriminate attacks, which are prohibited. Similarly, its rumoured use of cluster bombs: even though Russia is not a party to the treaty banning cluster munitions, their effect in civilian areas could be indiscriminate.

e. Thermobaric bombs and white phosphorus.

Although neither are expressly prohibited, their use is not per se unlawful, although it has been argued that they fall foul of the IHL restrictions or prohibitions on incendiary and chemical wea

pons, and on causing unnecessary suffering. White phosphorus can be used to illuminate targets and create smoke screens, but causes extensive burns and poisoning if it comes into contact with human skin. Because of this, some states prohibit its anti-personnel use, but its use is otherwise limited only by the general rules of IHL.

f. Chemical, biological and nuclear weapons.

Russia is a party to the Conventions prohibiting chemical and biological weapons, but not the Treaty on the Prohibition of Nuclear Weapons 2017. The US has alleged that Russia is contemplating the deployment of chemical and nuclear weapons in Ukraine.

g. Mistreatment of prisoners-of-war.

Ukraine has broadcast humiliating footage of captured young Russian soldiers, and allegedly deliberately injured Russian prisoners-of-war, in violation of the Third Geneva Convention 1949.

8. Possible war crimes

Although there is no uniform definition or list of ‘war crimes’, a widely accepted view is that a war crime is a serious breach of the laws and customs of war entailing individual criminal responsibility. They can be prosecuted in domestic courts if the relevant state has established the necessary jurisdiction, or in an international court or tribunal. Already 41 states (including Australia) have referred the situation in Ukraine to the International Criminal Court ("ICC"), where the Prosecutor has opened an investigation.

Neither Russia nor Ukraine is a party to the Rome Statute establishing the ICC, but the Court has jurisdiction because Ukraine has accepted that jurisdiction over all acts on its territory since early 2014.

The Rome Statute contains a list of war crimes covering most of the above violations of IHL, but it does not expressly include indiscriminate attacks or weapons, or the use of chemical, biological and nuclear weapons.

A special tribunal established to prosecute war crimes from the conflict might be able to overcome this, if the crimes within its jurisdiction could be drafted carefully enough to avoid breaching the nullum crimen sine lege principle. As Supreme Commander-in-Chief, Putin himself could be prosecuted if he ordered these violations, or failed to prevent acts he knew or ought to have known were occurring.

He could not be prosecuted at the ICC for the crime of aggression, but a special tribunal might be given that jurisdiction.

9. Status of participants in the conflict

The distinction between civilians and combatants is fundamental to IHL. Combatants can be lawfully targeted, at any time but civilians cannot. Provided that they comply with IHL, combatants cannot be prosecuted for their actions during the conflict, whereas civilians can. Civilians who take a direct part in the hostilities have the worst of both worlds: they can be lawfully targeted but have none of the combatant’s privileges such as POW status if captured, or immunity for their acts. The distinction between combatant and civilian becomes blurred in some situations.

The article highlights the type of participants and protections as follows:

a. Levee en masse: civilians who spontaneously take up arms on the approach of an enemy, without having time to organise themselves into a regular armed unit.

b. Volunteer Corps: Civilians who answer the government’s call and take up arms will be regarded as lawful combatants if they join Ukraine’s armed forces or militia or volunteer corps that are part of the armed forces, or if they join ‘other militias and … volunteer corps, including … organized resistance movements.’

c. Direct Participation in hostilities: a civilian loses their protection if and for as long as they take a direct part in the hostilities. This has proved fiendishly difficult to define, but a simple example would be a civilian driving a military truck carrying ammunition to the front line.

d. Mercenaries and foreign fighters: For ‘foreign fighters’ to benefit from the combatant’s privilege, they must fall within the categories listed above. For many, that should cause little difficulty as Ukraine is permitting foreign nationals to join the TDF and even its armed forces. Others however must fall within the requirements of an organised resistance movement, or risk being regarded as unlawful combatants. Russia has warned that it will treat any foreign fighter in Ukraine as a mercenary and unlawful combatant.

10. State responsibility

If it is accepted that the invasion is unlawful, Russia’s international legal responsibility is engaged. In international law, it is under a duty to cease the wrongful conduct and make reparation to Ukraine, and orders to this effect are being sought by Ukraine in its ICJ claim. In an unusually compressed timetable, the first round of pleadings will be complete in 12 months (Ukraine asked for 3) a result, at least on the preliminary question of whether the Court has jurisdiction, by mid-2023.

An interesting related question is the responsibility of Belarus for facilitating the invasion, for example by enabling Russian troops to invade northern Ukraine from Belarus territory. Under customary international law, it is unlawful for a state to knowingly assist another state to commit an internationally wrongful act. There is no obvious jurisdictional basis for any claim against Belarus that Ukraine might want to make before the ICJ, as states must expressly agree, somewhere, to have the case heard by the Court. But Ukraine faced the same difficulty with its claim against Russia. It overcame that difficulty, at least for the time being, by framing its complaint as a violation by Russia of the Genocide Convention – and disputes under the Convention can be heard by the ICJ.


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