What are the legal repercussions of Russia’s actions? - 2 March 2022 16:40 (GMT)
By launching an attack on Ukraine last week, Vladimir Putin violated Article 2.4 of the UN Charter, which prohibits the ‘use of force against the territorial integrity or political independence of any state’.
In his speech on 23 February, Putin defended his decision to invade stating that it was an act of self-defence. The two grounds upon which he makes his claim of self-defence are (1) he is defending two breakaway republics, Donetsk and Luhansk, in an act of collective self-defence (2) he is defending Russia against Ukraine. However, the two breakaway republics are not states, and they are not being attacked by Ukraine. Furthermore, Russian self-defence against Ukraine would only be justified if, as Article 51 states, ‘an armed attack occurs’. Although states often interpret this to include defence against the threat of an imminent attack, it cannot be said that Ukraine posed such a threat to Russia.
The International Court of Justice
The International Court of Justice (ICJ), which is the principal judicial body of the United Nations, handles inter-state disputes. However, it can only intervene when both states are in agreement that the ICJ should play a role in the mediation of conflict.
The International Criminal Court
The International Criminal Court (ICC) is a criminal court that prosecutes individuals. The ICC prosecutes four main crimes: genocide, war crimes, crimes against humanity and crimes of aggression.
Bringing a case against Russia for committing crimes of aggression is unlikely to happen. The ICC can only prosecute cases of aggression when both the perpetrator state and victim state are members of the court, and Russia is not a member.
For war crimes, crimes against humanity and genocide, the protocol is different. The ICC has the authority to take action, if the criminal act under discussion is committed in a state that has accepted the court’s jurisdiction, such as Ukraine, even when the perpetrator of the crime is a citizen of a state that is not a member of the court, such as Russia.
According to human rights groups and legal experts, the cluster munition killing a child and two other civilians taking shelter at a preschool in Okhtyrka on 25 February as well as the Russian attack on the residential neighbourhood in Kharkiv on 28 February can be used to take legal action against Russia’s perpetration of war crimes. As Ukraine is not a member of the ICC, it cannot request the criminal court to launch an investigation, but on 1 March both Canada and Lithuania did so on Ukraine’s behalf.
Collecting evidence
Establishing the concrete facts and ascertaining the liability of individual soldiers remains a challenging task. That said, with many Ukrainians constantly documenting the conflict on their phones and sharing their experiences on social media platforms, it becomes easier to gather evidence. Moreover, independent researchers and NGOs, such as Bellingcat, are geolocating and officially documenting evidence for future use.
Can Putin be put on trial?
To charge somebody with war crimes when they are not directly involved in the conflict is more problematic. For a legal case against Putin to be successful, it must be proven that: ‘the accused had effective control over subordinates who were carrying out the crime; that they knew or should have known about the crimes being carried out; and that they did nothing to stop or punish those directly responsible’.
If Putin’s tactics in previous military conflicts are anything to go by, there is every possibility that he could find himself put on trial for war crimes. However, the scope for preemptive self-defence has significantly expanded over the past decades, particularly since the US invasion of Iraq. If Putin is able to prove that his use of force was legitimate on these grounds, proving his culpability will become more challenging but not impossible.