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Russia’s Attack on Ukraine and International Law

Russia’s Attack on Ukraine and International Law

Russia’s Attack on Ukraine and International Law

러시아

우크라이나

Ⅰ. Russia’s Attack on Ukraine and Condemnation from the International Community 
Ⅱ. Russia’s Justification for the Attack 
Ⅲ. Russia’s Possible Violation of International Law 
Ⅳ. Response from Ukraine and the International Community 
Ⅴ. Policy Implications


Ⅰ. Russia’s Attack on Ukraine and Condemnation from the International Community 

According to the Ukraine’s emergency service\ Russia’s military attack on Ukraine on February 24killed more than 2000 civilians\ while the UN High Commissioner for Human Rights confirmed 364 civilian deaths. The UN Refugee Agency also reported on March 7 that more than 1.5 million refugees have fled Ukraine. In response to this situation\ the UN General Assembly held a rare emergency session on March 3 and adopted a resolution condemning Russia’s aggression against Ukraine with a total of 141 countries\ including the Republic of Korea\ voting in favor of the resolution.

At the 49th session of the UN Human Rights Council\ the Republic of Korea also strongly condemned Russia’s invasion of Ukraine\ describing it as ‘a clear violation of the UN Charter\’ and underscored that violence on innocent people can never be justified. U.S. Secretary of State Antony Blinken further questioned whether Russia should be allowed to remain in the Council\ expressing concern over Russia’s human rights abuses in Ukraine. On top of that\ about 100 diplomats\ many from Western countries staged a walkout as Russian Foreign Minister Sergey Lavrov addressed the United Nations Human Rights Council in defiance of his country’s invasion of Ukraine.

While Ukraine continues to resist the invasion\ the government is pursuing diplomatic efforts to hold Russia and its leaders accountable for the invasion through the UN Human Rights Council\ the International Court of Justice (ICJ) and the International Criminal Court (ICC). According to Ukraine\ Russia is responsible for use of force and other war crimes such as killing of civilians and the use of weapons prohibited by international law. President Vladimir Putin\ however\ has created more controversy by insisting that the invasion was legitimate under international law. 


Ⅱ. Russia’s Justification for the Attack 

When President Putin declared war against Ukraine on February 24\ he justified Russia’s use of force based on the notion of self-defense. He specifically mentions Article 51 of the UN Charter to defend Russia’s position by arguing that NATO’s so-called policy containment of Russia was a threat not only to their interests but also the very existence and sovereignty of their own state. Russia claims that further advancement of the NATO Alliance’s infrastructure to the borders with rapidly changing defence technologies is an “unacceptable” threat that leaves the Kremlin with no other opportunities or means to defend itself.   
 
In addition\ President Putin argues that the purpose of Russia’s operation is to protect the people in the Donbass region facing genocide perpetrated by Ukrainian nationalists. By specifically referring to cases of humanitarian intervention in Belgrade\ Iraq\ Libya and Syria\ President Putin emphasizes that Western countries’ illegitimate use of military forces in the past demonstrates their disregard for international law. 


Ⅲ. Russia’s Possible Violation of International Law 

Article 51 of the UN Charter\ which regulates the principle of self-defense\ points out that an ‘armed attack’ must occur for a state to use force against another state as a means of self-defense. In this regard\ Russia’s invasion is a clear violation of the UN Charter since there was no armed attack or any imminent attack from another state. Yet\ countries such as the U.S. and other Western countries have at times justified their use of force with a broader interpretation of the rules of self-defense under customary international law in the name of anticipatory self-defense or preemptive self-defense. States have also used force in the name of ‘humanitarian intervention’ in countries that are either incapable or unwilling to prevent severe and widespread human rights violations. 
 
Thus\ President Putin’s claim is not completely unfounded. However\ this notion of anticipatory self-defense or preemptive self-defense still remains controversial today as seen with the U.S.-led Iraq war. The U.S. was widely criticized by the international community for using force without full authorization from the UN Security Council and former Secretary-General Kofi Annan even claimed in an interview that the Iraq war was a violation of international law. Furthermore\ humanitarian intervention is still a controversial concept even though it was used as a justification for using force in Belgrade\ Libya and Syria. But as recommended by the 2005 Report on Responsibility to Protect\ states should seek authorization from an international or regional body before they intervene for humanitarian purposes. In this regard\ Russia’s unilateral use of force without authorization from any organization is hardly likely to gain any support from the international community.
 
In addition to violations of the principle on use of force\ Russia’s leaders could be held accountable at the International Criminal Court for crimes against humanity or war crimes with increasing attack on civilians and use of weapons  prohibited by international law. According to the Ukrainian Ambassador to the U.S.\ Russia used vacuum bombs which are in breach of the Geneva Conventions. NATO Secretary-General Stoltenberg also criticized Russia for using cluster bombs in violation of international law. 


Ⅳ. Response from Ukraine and the International Community 

With the help from the international community\ Ukraine is working to hold Russia accountable through various international legal platforms. For example\ Ukraine filed an application at the ICJ to initiate proceedings against Russia based on the Convention on the Prevention and Punishment of the Crime of Genocide on February 26\ 2022. Ukraine aims to prove that Russia’s claim that genocide has occurred in the Luhansk and Donetsk region is false\ and therefore\ find that Russia has no legal basis for using force against Ukraine. A request was also made to the ICJ to indicate provisional measures against Russia in light of the extraordinary urgency of the situation and call upon Russia to halt all military actions in Ukraine immediately. 
 
The International Criminal Court (ICC)’s Chief Prosecutor Karim Khan further provided a statement on February 28\ 2022 that it would open an investigation into the situation in Ukraine. Although Ukraine is not a State Party to the Rome Statute of the ICC\ it has twice declared that it would legally accept the Court’s jurisdiction over alleged crimes under the Rome Statute occurring on its territory. The first declaration covers alleged crimes committed on Ukrainian territory from November 21\ 2013 to February 22\ 2014. The second declaration extended the time period from February 20\ 2014 onwards. Based on the preliminary examination initiated and implemented since 2014\ the Prosecutor found that there was a reasonable basis to proceed with an investigation for war crimes and crimes against humanity and would investigate for all past and new alleged crimes that have occurred on the territory of Ukraine. However\ since Russia is not a State Party to the Rome Statute\ the court cannot hold Russian leaders accountable for the crime of aggression as the Rome Statute limits jurisdiction for the crime of aggression to State Parties to the Rome Statute.  
 
In addition\ in response to the request made by Ukraine\ the UN Human Rights Council\ with the support of 32 countries\ decided to establish a commission of inquiry. The inquiry has a mandate to investigate “all alleged violations and abuses of human rights and violations of international humanitarian law and related crimes” that occurred as a result of Russia’s attack on Ukraine and make recommendations for pursuing accountability. 


Ⅴ. Policy Implications   

Considering the rising death toll of civilians\ extensive destruction of cities across the country\ and the mass exodus of refugees from Ukraine\ it will be very challenging for Russia to get away with impunity. The ICC has already begun investigations for alleged crimes and the ICJ is employing a fast-track procedure to bring a ruling on provisional measures. But as seen in the Al-Bashir case\ it will be very demanding to extradite the Russian leaders to the ICC. Moreover\ even if the ICJ orders provisional measures against Russia\ it is very unlikely that Russia will comply with the Court’s orders. Nonetheless\ the decisions from these courts can impose significant pressure on Russia to halt the attacks and even be a possible legal basis for imposing more sanctions on the country. 
 
Ukraine deserves the international community’s support and praise for its firm diplomatic response and spirited defense against powerful countries such as Russia\ harnessing all possible international legal channels to assert its legal rights. The Republic of Korea\ once a war-ravaged country that has been rebuilt and transformed into a democratic and economic powerhouse with assistance from the UN\ needs to join the international efforts actively to resolve the situation in Ukraine based on the ROK’s own experiences. Last but not least\ the ROK should be more active in asserting ROK’s own legal rights in the international legal order as seen in the situation in Ukraine considering that realizing the rule of law in the international community can contribute to promoting peace and security on the Korean peninsula.


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