Ukraine was formerly a part of the USSR and gained its independence as a sovereign state in 1991. A large chunk of Ukraine’s population is culturally and linguistically Russian. This has created a conflict among the Ukrainian population, where a part of it ideologically aligns with Europe (supports joining NATO) and the other part aligns with Russia (against joining NATO).
In 2014, after the annexation of Crimea (formerly a part of Ukraine) by Russia, tensions also started building in the Luhansk and Donetsk region of Eastern Ukraine. It led to an armed conflict between Donetsk and Luhansk People’s Republics (DPR and LPR, respectively), and the Ukrainian army. Russia-backed separatists (DPR and LPR) wanted the Donbas (Donetsk and Luhansk) region to gain independence from Ukraine. Despite signing the Minsk Agreement (2014) for ceasefire, both sides have violated it since.
Why did Russia invade Ukraine?
Article 2(4) of the UN Charter (the founding document of the United Nations) prohibits any country from using or threatening to use force against the “territorial integrity” or “political independence” of any other country. However, there is an exemption to this rule in Article 51 of the Charter for individual or collective self defence to protect their country in case of an armed attack. Even in cases involving anticipatory self defence, the force used must be necessary and proportionate (imminent danger) to the threat posed by the perceived attack.
In the present case, Russia has argued that it is invading Ukraine to protect the right of self-determination of the people of the Luhansk and Donetsk region, who are facing genocide at the hands of the Ukrainian military. Self-determination refers to the freedom to form your own country and choose your own government. This right is often at loggerheads with territorial integrity of a country, with the latter taking precedence over the former.
Is Russia breaching international law?
On 22nd February, 2022, Russia recognized Luhansk and Donetsk as independent states. Thereafter, Russia declared its entry into Ukraine for “peacekeeping” measures to fight for the self-determination right of ethnic Russians in the Luhansk and Donetsk region.
Russia’s claim of genocide lacks legitimacy due to lack of evidence. For the exception provided under Article 51 to stand, there needs to be clear proof of an armed attack by Ukraine. Another obstacle to Russia’s claim is the Minsk Agreement of 2015 under which Ukraine consented to the formation of an interim self-government and providing amnesty to people involved in the conflict, in the two regions . As a result, Russia’s defence falls flat.
Are the Geneva Conventions being violated?
Geneva Conventions include four treaties and three additional protocols that form the basis of the code of conduct followed during armed conflicts with regard to civilians, prisoners of war and soldiers who are no longer involved in the conflict. They are the rules on which International Humanitarian Law operates.
Although Russia claims that it is fighting for the independence of the Donbas region, its acts have surpassed that territory. Furthermore, the recently reported bombing of a hospital’s matertinity ward and children clinic is a clear breach of the mandate under the Geneva Conventions.
Does the International Criminal Court (ICC) have jurisdiction?
The ICC is an international body that has the jurisdiction to prosecute individuals for crimes committed during an armed conflict. It can exercise its jurisdiction only if the domestic courts of the country fail to do so.
Since Luhansk and Donetsk are not recognized as independent by any other country, Russia’s interference amounts to infringement of Ukraine’s “territorial sovereignty”. This act could amount to the Crime of Aggression as defined under Article 8bis (2) of the Statute. But Ukraine and Russia are not parties to the Statute, and therefore, the ICC cannot exercise jurisdiction over this.
However, the ICC can exercise its jurisdiction over any acts on the territory of Ukraine that amount to genocide, crimes against humanity, and war crimes, through the following provisions-
- Declaration accepting ICC’s temporary jurisdiction for a period of time by the country where the attack is taking place. Ukraine gave a declaration with respect to crimes committed over its territory for the period between 21 November 2013 and 22 February 2014. Later, it gave a declaration with regard to acts amounting to war crimes and crimes against humanity from 20 February 2014. This declaration applies to the present conflict.
- After that, the ICC can exercise its jurisdiction:
- By a referral of the conflict by the United Nations Security Council (UNSC) to the ICC. However, such an attempt has already been vetoed by Russia, as it is one of the five permanent members of UNSC.
- By a referral of the conflict to the prosecutor by a state party to the ICC. The UK along with 38 other countries have already referred the case to the prosecutor for war crimes, crimes of humanity or genocide committed by Russia.
- By the volition of the prosecutor. ICC Prosecutor, Mr. Karim AA Khan, has decided to open an investigation into the matter, as provided under Article 15 of the Statute.
The way forward
Ukraine, which was previously a nuclear state, gave up its nuclear armaments and became a party to the Non-Proliferation Treaty. This was done in exchange for a promise of protection from offensive nuclear attacks by Russia and the USA. Ukraine was also promised a reference of the case (in case of a nuclear attack by any other country) in the United Nations Security Council by the USA. As Russia, a nuclear state, has started engaging in an armed conflict by breaching Ukraine’s border, it is a crucial time for the international community to fulfil its promise and come to Ukraine’s aid.