On 24th February 2022, the Russian president Vladimir Putin has declared that he is launching an assault against Ukraine “to defend people who for eight years are suffering persecution and genocide by the Kyiv regime” and further demanded Ukraine lay down its weapons or be “responsible for the bloodshed.” Russia states that its actions aim for the “demilitarisation and de-Nazification” of Ukraine1. Nonetheless, the assertive actions of Russia have now resulted in a full-fledged war (although Russia has refrained from using the term war) between these two countries resulting in damage to critical infrastructure like airports and military headquarters and a threat to civilian areas.
Today as it stands, Ukraine became an independent nation in 1991 after the fall of the Soviet Union. Ukraine since its independence has been given a tough choice wherein the Western part of Ukraine wants its integration with the western world whereas the Eastern side of Ukraine wants its integration with Russia. Further, Russia has also warned Ukraine of forming close ties with NATO or become its member. The whole political and geopolitical intervention has aggravated the issue into one of war where superpowers other than Russia are also entering the war domain through using their sanctioning powers. This unannounced war has now become a matter of international importance as such a war has devastating effects on several countries interfering with their trade, travel, etc. and thus calls for the relief and remedy under International Law because Russia is relying heavily on such law for validating its actions. Hence, it calls for analysing the sanctity of international law in the whole situation to understand its application and usage.
A violation under UN Charter
In the present case, Russia has prima facie breached Article 2(4) of the UN Charter. Article 2(4) of the UN Charter states that all members of the UN (which includes Russia) shall refrain in their international relations from the threat or use of any force against the territorial integrity or political independence of any other state. At the outset, the actions of Russia has resulted in the use of force against Ukraine. However, Russia has justified this use of force citing Article 51 of the UN Charter that allows the member country to use force as a measure of self-defence in cases where there is an armed attack occurring against them. The use of force is justified to an extent Security Council interferes and takes necessary measure to maintain international peace and security. Russia’s UN ambassador representing Russian Federation relying on Article 51 stated that the action of Russia does not amount to war and was a consequence of Ukraine’s actions. He further mentioned that the whole operation aims to protect the people who have been suffering genocide by Ukraine.2
However, the international law experts have stated that there has been no substance in the claims of Russia in using Article 51 defence as Ukraine did not commit or threatened to commit an armed attack against Russia or any other UN Member state. Moreover, even if Russia’s assertion that Ukraine had planned to commit attacks in Ukraine regions of Donetsk and Luhansk is taken on its face value, still the right to self-defence is not activated because both these regions are firstly not qualified as States under international law and secondly, are not the UN Member States. Thus, the action under the garb of self-defence is not permissible for Russia to take.3
Moreover, it is not out of sight that Russia is a permanent member of the UN Security Council and as a result enjoys veto power wherein it means that if so ever any permanent member state casts a negative vote against any resolution pending UNSC decision, such resolution cannot be approved unless such member approves the same. Using this privilege, Russia used its veto power in a US-sponsored resolution that was in regard to condemning the role of Russia’s aggression against Ukraine. The resolution is to the effect that Russia should immediately cease its use of force against Ukraine and refrain from any further unlawful threats. However, Russia using its veto power blocked the resolution and hence stalled the resolution.
Actions under Responsibility to Protect (R2P)
To defend its action, Russia has also relied on the principle of Responsibility to Protect (R2P). R2P is an international norm that provides for ensuring that the international community does not in any case result in failing to prevent the committal of mass atrocity crimes of genocide, war crimes, ethnic cleansing and crimes against humanity in coming times. This principle was evolved in 2001 and unanimously adopted in 2005 at the UN World Summit. The concept originated as aftermath and observations made after seeing the failure of the international community inadequately responding and protecting the atrocities that took place in Rwanda and the former Yugoslavia during the 1990s. Paragraph 138 of the World Summit Outcome Document 4articulates that each state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity and such protection provided shall be through appropriate and necessary means. Thus R2P stands on three pillars which are –
- Every state must protect its people from atrocity crimes like genocide, war crimes, crimes against humanity and ethnic cleansing.
- The international community as a whole has the onus to encourage and assist individual states in meeting that responsibility.
- If a state is certainly failing to protect its people, the international community should take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter.5
Till the time, R2P has been invoked in 80+ UN Security Council resolutions in relation to crises taking place in different regions. Thus, Russia is relying on the same doctrine to assert the claim of protecting genocide taking place in Ukraine. Ironically, Russia was an earlier staunch critic of this concept however, at this moment; it is finding merits in its usage.6Nonetheless, the applicability of this principle is a contested issue to be decided by the ICJ.
The defence under Genocide Convention-
Russia has also claimed that Ukraine is committing Genocide against the Russian people in the Donetsk and Luhansk region of Ukraine. However, it is to be understood that the definition of Genocide is precisely provided in Article II of the Genocide Convention, 19487. This convention criminalizes the specific act of genocide and further makes it obligatory for all states party to enforce the treaty. Article II states that genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.
As per media reports which quote the comment of the executive board of the International Association of Genocide Scholars, it was stated that the defence of Russia about genocide is ‘misappropriate and a misuse’.8Other reports have also stated that Ukraine has challenged the Russian claim of genocide on the ground that Russia‘s interpretation of genocide is faulty and is opportunistic in nature as there was no evidence citing that Ukraine fulfils any of the essential that constitutes genocide. Experts are also of the view that there is no evidence that Ukraine has engaged in any of the defined actions and certainly no evidence of intent to destroy in whole or in part any group in eastern Ukraine. Thus, the defence of Russia under the Genocide convention prima facie looks weak as the onus to prove is very high at this moment due to lack of evidence.
Unfortunately, even if the ICJ rules in the favour of Ukraine that the claims of Russia are mala fide, there is no stringent enforcement mechanism of the order delivered by the ICJ despite the binding nature of the ICJ rulings. Presently, the whole situation has shown that the international law at this stage is feeble to control any such war whenever there is any superpower involved. Due to the lack of precedents and wide yet ambiguous provisions of international law, there is always a scope left for its misuse. Nonetheless, the current times require an intervention by other nations to push the countries in resolving the dispute through diplomatic route rather than through violence. Such issues that have the possibility of massive damages should be resolved through negotiations and mediations as history states that every war comes to an end with an agreement following negotiations9. On the other hand, this incident warrants the introspection of applicability and commitment of international law in resolving disputes so as to prevent any such aggression or war from taking place in the upcoming times.