International law must make an example of Putin to potential aggressors

On February 24, 2022, Russia invaded Ukraine in the worst violation of international law since World War II.

This is part of a pattern of Russian use of force: the 2008 invasion in Georgia, the 2014 annexation of Crimea in support of separatists in Eastern Ukraine, and now this.

These acts of aggression didn't just violate the 1994 Budapest Memorandum and the 2014 Minsk agreements, but also jeopardised the significant progress that the international law on armed conflict has achieved, in terms of the law of the use of force and international humanitarian law.

In 1919, the Covenant of the League of Nations obliged all States to respect each other’s sovereignty and territorial integrity (an obligation present since the 1648 Treaty of Westphalia), but also to join in preserving other States against aggression.

The central idea was that aggression is a crime against the whole human community. It did not explicitly prohibit war, but made States bound to submit all disputes to peaceful settlement. And even if no such settlement is reached, they promised to wait for a further three months before going to war (Article 12).

The Briand-Kellogg Pact of 1928 was the first international legal treaty to outlaw war in international relations. But this did not prevent aggression by Japan, Italy, Germany and the Soviet Union that led to the Second World War. In 1945, the United Nations was established with the primary purpose to maintain international peace and security and to prohibit the threat, or use of, force (Articles 2/4).

The Russian aggression against Ukraine in 2022 is a textbook example that history can be turned back. Putin’s invasions closely resemble Nazi Germany’s aggressions in the late 1930s. Putin’s annexation of Crimea and the invasion of Ukraine closely resemble Hitler's annexation of Austria (Anschluss) in 1936 and his invasion of Czechoslovakia in 1938.

Putin's justification for the Ukraine invasion -- about how Russians living in Eastern Ukraine were not allowed to speak their native language and were subjected to suffering, amounting to 'genocide' -- was classic Hitler. The Nazi leader said he had to invade Czechoslovakia because the Germans in Sudetenland were not allowed to speak German and were suffering under an oppressive government.

Putin's claim of 'de-nazifying' Ukraine is ironic. Paradoxically, it is the Russian strongman who has supported extreme nationalist movements around the world, whereas in Ukraine, the extreme nationalists — who indeed grew after the 2014 annexation of Crimea — have been outvoted in elections and marginalised.

The ‘de-nazification’ of Ukraine has already been achieved by the Ukrainian people. Indeed, they have elected as their leader President Volodymyr Zelensky — a Jew who lost his parents in the Holocaust. Putin would do better to ‘de-nazify’ Russia of its ultra-right nationalists.

Aggressors never admit to violations of international law. Putin has referred to Russia’s right of self-defence (Article 51 of the UN Charter). First of all, the lack of an imminent armed attack against Russia cannot trigger Article 51. Second, Russia’s support for non-State armed groups in Ukraine is itself unlawful under international law. Third, recognitions of breakaway republics during ongoing armed conflicts is a violation of the non-intervention principle, even more so when these republics are completely dependent on Russia, and not sovereign. Fourth, Russia itself blocked Kosovo’s recognition and admission to the UN to protect Serbia’s interests and territorial integrity. The NATO intervention in Serbia ended in 1999, and Kosovo declared independence only in 2008 — another substantial difference to Eastern Ukraine.

Putin also pointed to NATO's expansion as a security threat to his country. NATO does not have an agenda of expansion — independent States apply for membership, and they do so not to invade and conquer their neighbours, but to safeguard their sovereignty from one particular neighbour. In fact, NATO has not deployed any heavy weapons in any of the three Baltic States. It has also resisted Ukrainian membership between 2008 and 2022.

International Humanitarian Law

Russia has flagrantly violated not only the law of the use of force, but also the conduct of military hostilities and international humanitarian law. Historically, such conduct has been prohibited even as early as the 1899 and 1907 Hague Conventions, negotiated and adopted with the active role of, paradoxically, the Russian delegation and its diplomat Fyodor Martens.

The evidence of Russia's war crimes pile up each day, with the targeting of blocks of apartments, hospitals and other civilian infrastructure. The shelling of humanitarian convoys and killing of civilians trying to evacuate also amount to a further grave breach of the 1949 Geneva Convention. The use of prohibited weapons such as cluster munitions and vacuum bombs have also been reported.

More worrying is the threat to use nuclear weapons and the occupation of nuclear facilities — clear violations of international humanitarian law. The proof is already there, and in a court of law, Russia can easily be found in violation not only of illegal conduct of war and targeting of non-combatants but also the use of prohibited weapons in armed conflict.

International Criminal Law

On February 28, the International Criminal Court (ICC) Prosecutor Karim Khan sought authorisation to open an investigation into the situation in Ukraine under Article 12(3) of the Rome Statute. The investigation opened on March 2, 2022, after an unprecedented referral by 39 member-States, covering allegations of war crimes, crimes against humanity or genocide committed on any part of Ukraine by any person from November 21, 2013, onwards.

Because Russia is not a State-party to the Rome Statute, its crime of aggression cannot be investigated by the ICC. But 38 high-profile legal and political actors issued a declaration calling for the constitution of a Special Tribunal to investigate the crimes of aggression in Ukraine, parallel to the ICC investigation.

Human Rights Law

The European Court of Human Rights granted urgent interim measures ordering Russia to refrain from military attacks against ‘civilians and civilian objects, including residential premises, emergency vehicles and other specially protected civilian objects, and to ensure immediately the safety of the medical personnel and emergency vehicles within the territory under attack or siege by Russian troops’. The Human Rights Council also voted to create a Commission of Inquiry on Ukraine.

The hope is that the courage and commitment of the Ukrainian people, bolstered by economic and diplomatic sanctions against Russia, will stop the war. The international community is also harnessing international law to respond to the Russian invasion with unprecedented speed and scale. This is an inflection point — if perpetrators of international crimes are brought to justice and held accountable, and the consequences of perpetuating war become visible, then the power of international law could help re-establish global peace.

(The writer is Executive Director, Centre for the Study of United Nations, O P Jindal Global University, Haryana)