The current Russia – Ukraine crisis has raised certain intrinsic questions as to the existence and efficacy of International Laws and Organizations.
Vladimir Putin,
the Russian Federation President, in his imperialistic speech declared a
special military operation in order to protect people who had been abused by
Genocide for eight years under the Kyiv regime and shall strive to demilitarize
and de-nazify Ukraine and bring those to justice who had committed crimes
against the civilians of Russian Federation. Paradoxically, Mr Putin has cited
international law to defend his blatant illegal actions. But these
justifications are laughably weak, erroneous and absurd. The present crisis has
posed a question as to the existence and enforcement of international law if
Russia can still use military force and invade Ukraine.
Formation of
the United Nations has created new order of International Relations, placing
its bedrock on the sovereignty and integrity of a nation. The member countries
of the United Nations are duty bound to not interfere with one another’s
domestic and internal affairs, as apart from violating the UN Charter, it leads to circumstances
which threatens the peace and security of a nation.
Recognition of
Regions in Eastern Ukraine
Before invading
Ukraine, Russia recognised two separatist enclaves – Donetsk and Luhansk as
independent states, followed by signing treaties of friendship, cooperation and
mutual assistance, thereby paving way for Russian military forces into other
separatist areas openly. While acting so, Russia has invoked the controversial
doctrine of remedial succession. But nevertheless, international law does not recognise unilateral succession even
in the right of self-determination, an autonomy within the state.
The following
principle in the Declaration on Principles
of International Law Concerning Friendly Relations and Co-operation Among States in Accordance
with the Charter of the United Nation gives rise to the foundation of remedial
succession,
“Nothing in the foregoing
paragraphs [concerning the right of self-determination] shall be construed as
authorizing or encouraging any action which would dismember or impair, totally
or in part, the territorial integrity or political unity of sovereign and
independent States conducting themselves in compliance with the principle of
equal rights and self-determination of peoples as described above and thus
possessed of a government representing the whole people belonging to the
territory without distinction as to race, creed or colour.”
This principle
allows succession in the cases where the Government wasn’t truly inclusive and
offering the right of internal self-determination to its citizens.
The Supreme
Court of Canada, in one of its notable judgments, the Quebec case, affirmed that the
international law does not endure right to unilateral succession and further
states that such succession can be asserted only in the ‘most extreme cases’
which denotes a very big threshold such as severe injustice and oppression and
grave violations of human rights. The claims of genocide of ethnic Russians by
Ukraine are not supported by any proof of evidence. Moreover, under the Minsk
accords, Ukraine explicitly acceded to recognise the autonomy of Donetsk and
Luhansk, which clearly warrants the baseless claims of Russia and by
recognising the two regions of Eastern Ukraine, it has clearly infringed the
Declaration on principles of international law and Article 2(4) of the UN Charter by
interfering and undermining the territorial integrity of Ukraine.
Invading
Ukraine
Russia’s armed
attack and missile strikes in the land of Ukraine represents a callous
exhibition of use if force as proscribed under article 2(4) of the UN Charter.
Grotesquely, Russia has defended that its actions would be construed as ‘self-defence’ in pursuant to Article 51
of the UN Charter. Yet, it is a known certainty that Ukraine did not open any
armed attack in Russia and there was no imminent threat from Ukraine, which
would rationalise Russia’s actions. Even if Russia’s claims were found
legitimate, unleashing countrywide actions and disproportionate attacks on
Ukraine under the theory of self-defence is not permissible.
Also, Russia
has endorsed its actions to the disputed principle of Responsibility to Protect
(R2P), and further asserted
that it is the responsibility of Russia to protect Ukraine against the alleged
baseless claims of genocide in Ukraine. Any actions under R2P does not mandatorily
need to be sanctioned by United Nations Security Council. For instance, in
1992, US intervention in Somalia was authorised whilst NATO’s bombing of
Bosnian Serbs was not. Earlier, Mr Putin was highly skeptical of the concept of R2P,
which validates humanitarian intervention, especially in the case of bombing of
Yugoslavia by NATO, ironically, at present, he relies on the same concept to
justify its operation in Ukrainian invasion and Crimea annexation in 2014.
United Nation:
Available course of actions
On February 27,
2022, the United Nations Security Council has invoked General Assembly
resolution 377A (V) to convene an emergency special
session of General Assembly on the crisis of Ukraine. It is the prime
responsibility of the Security Council to maintain international peace and
security as stipulated under Article 24 of the UN Charter, which is inclusive
of all the collective measures to prevent peace threats and for suppressing the
acts of aggression. But the UNSC cannot decide the coercive methods since
Russia is one of the five permanent members of the Council. With regard to the
use of force, the General Assembly cannot replace the place of UNSC, but it can
advocate that member states shall come to the aid and assistance of the victim
state,
The General
Assembly also possesses an option to constitute a criminal tribunal on its
approval, based on the agreement between the Secretary General and the
concerned state under Chapter II of the Law on the Establishment of
the Extraordinary Chambers and for an establishment of an ‘International,
Impartial and Independent Mechanism’ to aid in the investigation and
prosecution of people who had committed the most serious crimes under
international law such as the resolution adopted by the Human Rights Council in
Syrian Arab Republic.
Furthermore,
without pointing to any previous illegal actions, the Secretary General shall
offer his good offices and shall serve as a neutral entity and try to moderate
between Russia and Ukraine. But such a step would warrant a change in the
political scenario!
With regard to
the position of suspending Russia or stripping of its permanent membership from
the UNSC as stipulated under Article 5 and 6 of the UN Charter respectively, it
would require the recommendation of the same from the Council, which would
again be subjected to veto, which turns out to be an unfeasible option. Even
amendments as specified under Article 108 of the UN Charter, would mandate all
the permanent members of the Council to agree.
Moreover, Rule 20 of the Security Council’s
provisional rules of procedure states that if the President of the Council
deems that there would be a conflict to preside over any issue, the president
shall leave the chair to the next in line to preside over that issue. Anew, such
a decision would be on the sole discretion of the President and is not
subjected to the supervision of the Council, unless an order is made to force
the president to leave the chair. Even if the president is made to resign, he
would still possess an opportunity to vote as a member which constitutes a
procedural defect.
Infringement of
Rome Statute
The present
gruesome actions of Russia would commensurate the commission of Crime of
Aggression, which includes use of force against the sovereign, territorial
integrity or political independence of another state as elucidated under Article 8bis(2) of the Rome Statute.
The prosecutor
of the International Criminal Court, has asserted that there are reasonable basis to believe that both
crimes against humanity and war crimes under Article 7 and 8 of the Rome Statute has been committed in
Ukraine and has decided to launch an investigation into the same. Additionally,
Ukraine has moved to the International Court of Justice on the issues of
allegation of genocide and the Court has decided to hold a public hearing on 7th
and 8th March 2022.
Ideally, the
aggressor state and its leaders should be held accountable for its act of aggression
against Ukraine and shall face international individual criminal responsibility
under Article 25 of the Rome Statute. Howbeit, the court would not be able to
exercise such action due to its narrow jurisdiction as both Russia and Ukraine
are not party to the Rome Statute (Though formerly, Ukraine has accepted the
Jurisdiction of ICC).
Revisionist
approach of Russia
Russia has
always followed a statism approach towards international law principles which
holds that a state’s sovereignty and distinctiveness forms the basis of an
international rule. Russia views Ukraine as a country of limited sovereignty,
or worse, an illegitimate country which is rightfully and culturally
Russia’s.
Historically,
Russia has always reflected a hierarchy where its own national interests
supersede those of its neighbour’s. The antecedent actions of Russia such as
invading Georgia in 2008, annexing Crimea in 2014, recognising
the independence of Abkhazia and South Ossetia in 2008, stands as a testimony
to this fact. Expounding International law with a focus on humanitarian
objectives at the expense of territorial integrity has debilitated the
international legal front as a whole. For instance, Russia has always invoked
legal justifications and relied on its rights to self-determination to justify
its interventions and attacks.
About the Author: This post is prepared by Sara Suresh, law student at Symbiosis Law School, Pune. She can be reached at 17010125034@symlaw.ac.in
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