Stopping Invasion: Is the Law A Valid Weapon?
After nearly one month and three weeks of intense fighting, the conflict in Ukraine harkens back to the last World War. Military casualties are staggering, with potential losses for Ukraine currently above 1,300 military personnel;[1] while Russia has lost anywhere from 10,000 to 21,000.[2] In comparison, the United States’ twenty-year-plus “War on Terror” cost the United States just over 7,000 military personnel.[3] These shocking numbers fail to recognize the humanitarian crisis created by the invasion of Ukraine. There have been nearly 2,700 civilian casualties, including children, and well over four million refugees.[4] Each day, the world continues to watch in horror as the situation continues to escalate in Ukraine.
The world seeks solutions to arm Ukraine and weaken Russia, while avoiding a situation that could spiral into “World War III” with only a little more than a gentle nudge. To assist Ukraine, countries have provided countless shipments of weapons and aid[5] while also weaponizing economies in an attempt punish Russia with a large quantity of sanctions[6] through a united world-wide effort. But can the world, and more importantly, Ukraine, use the law as a weapon to stop the invasion? The answer is more complex than a simple yes or no. There are a few legal avenues to travel down; however, they could ultimately lead to dead ends for Ukraine.
Russia Has Violated the United Nations Charter
The invasion arguably violates Article 2(4) of the United Nations (“U.N.”) Charter in which U.N. member states agree to avoid the “use of force against the territorial integrity or political independence of any state.”[7] The Kremlin has attempted multiple times to justify its unjustifiable invasion.[8]
These futile attempts, by Russia, rely on Article 51 of the U.N. Charter which states, “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.”[9] However, this is problematic because Russia claims there was Ukrainian aggression in the regions of Donetsk and Luhansk, both of which border Russia.[10] The regions of Donetsk and Luhansk are not members of the U.N., but rather a part of Ukraine; collective defense of these regions by Russia therefore fails.[11] They fail to even qualify as states under international law, with or without Russian recognition.[12] Russia’s backwards logic will therefore not provide justification their invasion of Ukraine. Unfortunately for Ukraine, there is not one clear path forward to hold Russia legally liable for its clear violations of the U.N. Charter, but there are options.
There are Three Main International Court Options that Ukraine and the World Could Use to Weaponize the Law
The primary option seems to exist in the International Criminal Court (“ICC”). The court, which sits in The Hague in the Netherlands, is tasked with “investigat[ing] and, where warranted, tr[ying] individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.”[13] The crime of aggression, including a carve-out for non-party states, was established by the Rome Statute of 2002 and gave the ICC jurisdiction over and power to prosecute states that are party to the agreement.[14] Russia, however, is not a party to the agreement.[15] This means that even though the Rome Statute grants jurisdiction to the ICC over states that are party to the agreement, Russia, as a non-party, can escape the jurisdiction of the ICC for the crime of aggression.[16] Hence, this creates a potential dead-end for those seeking to prosecute Russia in the ICC. Yet, the continuing escalation could lead to the commission of crimes over which the ICC has jurisdiction without a carve-out, opening the door again for prosecution.
Second, Ukraine can look to the World Court or International Court of Justice (”ICJ”) for assistance.[17] The ICJ “is the principal judicial organ of the U.N.”[18] The ICJ has previously held that it has jurisdiction to hear cases which were disputes between Ukraine and Russia.[19] The U.N. Security Council can make recommendations to the ICJ, but Russia, as a permanent member, has the ability to veto such recommendations, which it has already done.[20] Similar to the ICC, the ICJ could step in if other crimes, like genocide, are committed or after mediation has failed between Ukraine and Russia.[21] However, as long as Russia holds its permanent seat and veto power in the U.N., the hands of the ICJ may be tied.
Third, the European Court of Human Rights (“ECHR”) could present yet another legal option for Ukraine.[22] ECHR “is charged with supervising the enforcement of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950; commonly known as the European Convention on Human Rights), which was drawn up by the Council of Europe.”[23] While Ukraine has successfully brought claims here in the past[24], a claim brought against an entire invasion may not be possible. Unfortunately, aggression or even the use of force is not outlawed in the Convention.[25] This would essentially mean that victims of Russian destruction could bring individual claims under the issues covered in the Convention; but as a nation, Ukraine is most likely unable to bring a claim in this court generally for aggression or use of force (the invasion generally).[26]
Where Ukraine Stands Now
The ICJ was the first international body to address the legality of the invasion of Ukraine.[27] They have allowed Ukraine to have a hearing and specifically discuss the potential genocide against Ukrainians.[28] Should the court side with Ukraine, they could order Russia to stop military actions with one major catch: the UN Security Council enforces this decision, the same council in which Russia holds veto powers.[29]
The ICC has also opened an investigation into Russia’s actions.[30] Although attempts by the ICC to hold non-member states accountable has arguably been pointless; going after Russia would restore some credibility to the ICC (after a long history of favoring superpowers) and put convicted Russian soldiers and individuals at risk of arrest should they enter an ICC member state.[31]
“On March 1, [ECHR] granted an interim measure, ordering Russia to cease military attacks against civilians and provide unimpeded access to humanitarian aid.”[32] Though Russia continues to ignore this order, this only helps Ukraine and its allies build a case against Russia as evidence of wrongdoing continues to mount.[33]
At this moment in time, no meaningful legal action has taken effect against Russia for its invasion of Ukraine. It is clear moving forward that the courts are willing to hear Ukraine’s claims and that Russia continues to dig itself into a deeper legal hole. As one world and many individuals, we can continue to pray for an end to the Russian invasion and atrocities in Ukraine. Until then, the world must continue to appreciate the staunch resistance, tenacity, and pure willpower of the Ukrainian people and observe how the invasion will shape the future of international law.
[1] Alex Horton, Ukraine’s Combat Losses Strike a Painful Chord With U.S. Military Veterans, Wash. Post (Mar. 16, 2022) www.washingtonpost.com/national-security/2022/03/16/ukraine-combat-casualties/ [perma.cc/2WAN-C77M] (Ukrainian causalities have most likely increased since this article was published, however due to the volatility of the conflict and information received by the general public this number is a best estimate at the time this blog post was written); see also Tim Lister, Tara John, & Paul P. Murphy, Here's What We Know About How Russia's Invasion of Ukraine Unfolded, CNN (Feb. 24, 2022), www.cnn.com/2022/02/24/europe/ukraine-russia-attack-timeline-intl/index.html [perma.cc/D23G-7P6S] (identifying that Russia’s invasion of Ukraine began on February 24, 2022).
[2] Natasha Bertrand, Katie Bo Lillis, & Jeremy Herb, Mounting Russian Casualties in Ukraine Lead to More Questions About its Military Readiness, CNN (Mar. 18, 2022), www.cnn.com/2022/03/17/europe/russian-casualties-ukraine-military-readiness/index.html [perma.cc/4YSF-TKA5]; see also Helene Cooper, Julian E. Barnes and Eric Schmitt, As Russian Troop Deaths Climb, Morale Becomes an Issue, Officials Say, NY Times (Mar. 16, 2022) www.nytimes.com/2022/03/16/us/politics/russia-troop-deaths.html [perma.cc/23BM-YH7P] (Russian causalities are hard to estimate due to the Kremlin’s tight control and/or misleading statements regarding their casualty data).
[3] Aaron O’Neill, Number of United States Military Fatalities in Major Wars 1775-2022, Statista (Feb. 3, 2022), www.statista.com/statistics/1009819/total-us-military-fatalities-in-american-wars-1775-present/ [perma.cc/43GB-Z9HS].
[4] Conflict in Ukraine, Council on Foreign Relations (last visited Mar. 31, 2022), www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine [perma.cc/C34V-LUMZ].
[5] Bernd Debusmann, Jr., What Weapons Will US Give Ukraine – and How Much Will They Help?, BBC (Mar. 17, 2022), www.bbc.com/news/world-us-canada-60774098 [perma.cc/3ZR2-2WBU].
[6] Michelle Toh et al., The List of Global Sanctions on Russia for the War in Ukraine, CNN (Feb. 28, 2022), www.cnn.com/2022/02/25/business/list-global-sanctions-russia-ukraine-war-intl-hnk/index.html [perma.cc/GFS5-HHR7] (explaining how sanctions or penalties are being applied to Russia and listing sanctions that are being apply to Russia which include: removing Russian banks from “SWIFT”, limiting the ability of Russian banks to deploy their internal financial reserves, freezing the assets of prominent Russian citizens, limiting or taxing the trade of luxury goods, prohibiting the export of goods to Russia, barring Russia from using the U.S. dollar for transactions, and blocking certain technology exports).
[7] U.N. Charter art. 2, ¶ 4.
[8] Niko Vorobyov, How is the Ukraine Invasion Being Viewed in Russia?, Al Jazeera (Feb. 24, 2022), www.aljazeera.com/news/2022/2/24/no-choice-but-to-invade-ukraine-kremlin [perma.cc/TK5D-8SBV].
[9] U.N. Charter art. 51.
[10] Press Release, Secretary-General António Guterres, Secretary-General Says Russian Federation’s Recognition of ‘Independent’ Donetsk, Luhansk Violate Ukraine’s Sovereignty, Territorial Integrity, U.N. Press Release SG/SM/21153 (Feb. 23, 2022) (discussing U.N. Secretary-General António Guterres’s remarks on Russia’s recognition of the two rebel states just one day before its invasion of Ukraine).
[11] Id.
[12] Id.
[13] About the Court¸ ICC (last visited Mar. 19, 2022), www.icc-cpi.int/about [perma.cc/7N7U-36PL].
[14] Rome Statute of the International Criminal Court¸ Cornell L. Sch. (last visited Mar. 19, 2022), www.law.cornell.edu/women-and-justice/resource/rome_statute_of_the_international_criminal_court [perma.cc/V7ZL-ZZR5] (explaining as well that not only the crimes, but also the ICC’s authority arises from the Rome Statute).
[15] The States Parties to the Rome Statute, ICC (last visited Apr. 4, 2022), asp.icc-cpi.int/states-parties [perma.cc/ZF6W-XY2L].
[16] Courtney Hillebrecht, An international court is investigating possible war crimes in Ukraine. What does that mean, exactly? , Wash. Post (Mar. 21, 2022), www.washingtonpost.com/politics/2022/03/21/ukraine-russia-icc-investigation/ [perma.cc/SBW4-39Y9].
[17] The Court, ICJ (last visited Mar. 19, 2022), www.icj-cij.org/en/court [perma.cc/LD38-LDDD].
[18] Id.
[19] UN Top Court Says it has Jurisdiction in Ukraine-Russia Case, Al Jazeera (Nov. 8, 2019), www.aljazeera.com/news/2019/11/8/un-top-court-says-it-has-jurisdiction-in-ukraine-russia-case [perma.cc/G6HN-LF92].
[20] Vanessa Romo, Russia Vetoes UN Security Council Resolution that Denounces its Invasion of Ukraine, NPR (Feb. 25, 2022), www.npr.org/2022/02/25/1083252456/russia-vetoes-un-security-council-resolution-that-denounces-its-invasion-of-ukra [perma.cc/P8UN-RUXS].
[21] ICC, supra note 13.
[22] John G. Merrills, European Court of Human Rights, Britannica, (last visited Mar. 19, 2022), www.britannica.com/topic/European-Court-of-Human-Rights [perma.cc/VAE7-987X].
[23] Id.
[24] Al Jazeera, supra note 19.
[25] Eliav Lieblich, Not Far Enough: The European Court of Human Rights’ Interim Measures on Ukraine, Just Security (Mar. 7, 2022), www.justsecurity.org/80482/not-far-enough-the-european-court-of-human-rights-interim-measures-on-ukraine/ [perma.cc/738C-NY9C].
[26] Eliav Lieblich, Not Far Enough: The European Court of Human Rights’ Interim Measures on Ukraine, Just Security (Mar. 7, 2022), www.justsecurity.org/80482/not-far-enough-the-european-court-of-human-rights-interim-measures-on-ukraine/ [perma.cc/GLS6-LKVV].
[27] Kelebogile Zvobgo & Nathaniel Liu, Putin Won’t End Up at The Hague — But War-Crimes Prosecutions of Russia Still Matter, Wash. Post (Mar. 15, 2022), www.washingtonpost.com/outlook/2022/03/15/international-law-tribunal-russia-ukraine/ [perma.cc/8W67-PFMK].
[28] Id.
[29] How the Court Works, ICC (last visited Apr. 11, 2022), www.icc-cpi.int/about/how-the-court-works [perma.cc/2Q5P-WFAG].
[30] Zvobgo, supra note 27.
[31] Id.
[32] Id.
[33] Id.