Russia’s invasion of Ukraine: The Implication Under International Criminal Law.
By Edem Uwem
Amidst global uncertainty about Russia’s next move, what started as mere threats materialized into a full-blown war on 24 February 2022 when Russia sent its armed military men to Ukraine. The invasion traces its root cause to the leaning of Ukraine towards the West – both the European Union(EU) and the North Atlantic Trade Organization (NATO)- since its independence in 1991. Russia feels threatened by Ukraine’s desire to join NATO. As a result, the invasion according to the president of Russia Vladimir Putin was to “demilitarise and de-Nazify Ukraine”.
This move was aimed at discouraging Ukraine from joining NATO. This is further compounded by the none recognition of the independence of Ukraine by Russia. Before the outbreak of the war, the intention was to overtake the government of Ukraine, but with Ukraine putting up a hard fight for the protection of its people and territory, Russia now seems to demand a neutral Ukraine. A full-blown war has broken out. As it spans days, weeks, and soon to months, so many atrocities are committed by the warring parties, civilians have lost their lives, properties are destroyed and Ukrainians have fled their homes for safety. With these happenings, it becomes pertinent to titivate on the legal implications of the ongoing conflict at is concerns international Criminal Law, bearing in mind the possible international crimes Russia has committed in Ukraine, the liability for the crimes if any, and the jurisdiction of the International Criminal Court (ICC) to try for the crimes especially since both Ukraine and Russia are not parties to the Rome Statute of the International Criminal Court (Rome Statute).
First off, has Russia committed any International Crime in Ukraine?
International crimes are the most serious crimes of concern to the International community. These crimes are listed in Article 5 of the Rome Statute. They are:
- a) The Crime of Genocide
- b) Crimes against Humanity
- c) War crimes
- d) The crime of Aggression.
On the crime of Genocide, Article 6 of the Rome Statute provides to the effect that this crime is committed when ‘members of a group’ are killed; mentally or bodily harmed; subjected to conditions of life calculated to bring physical destruction of the group in whole or in part; prevented from giving birth because of measures imposed and forcefully transferred. The mental element must be to destroy that group whether in whole or in part. An example of Genocide was that which occurred during the Rwandan Civil war of 1994.
Granted, Russia has carried out some of these acts – like the killing of Ukrainians, and the infliction of both physical and mental harm-, this is seen by reports from the Office of the High Commissioner for Human Rights (OHCHR) that between the 24 of February to the 15 of March 2022, 726 people have been killed including 52 children. However, some other acts such as the ‘prevention of birth’ among the people may be difficult to prove in the current situation. Also, the mental element is lacking. In the Russian attack, the intent was to either overthrow the Ukrainian government or force them against joining NATO. The intention was never to destroy the group whether in whole or in part. With this understanding, Russia cannot be said to have committed the crime of genocide.
On the Crime against humanity, Article 7 of the Rome Statute defines this crime as any widespread or systematic attack against the civilian population with knowledge of the attack. It goes further to mention eleven physical acts that would constitute this particular crime. These acts include inter alia murder; extermination; enslavement, rape, and so on. The mental element is that the acts must be intended to form part of a widespread or systematic attack against the civilian population with knowledge of such attack. This was extensively explained by the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Prosecutor v. Tadić (alias “Dule”), “Judgement”, IT-94-1-T, 7 May 1997, para. 656-659 (Tadic’s case); and the International Criminal Tribunal for Rwanda (ICTR) in the case of Prosecutor v. Semanza, “Judgement”, ICTR-97-20-T, 15 May 2003, para. 332
Arguably, Russia has carried out some of the physical acts that could constitute crimes against humanity. But the mental element is lacking again. The attacks were not carried out as part of a ‘systematic or widespread attack against the civilian population ‘. The attacks were intended against Ukrainian armed forces and military objectives. Civilian casualties recorded are merely incidental or what may be referred to as collateral damages( these are injuries inflicted on persons other than the intended targets). There are evidence where Russian troops have refused to kill Ukrainian civilians despite having the chance to do so.
On War Crimes, Article 8 of the Rome Statute defines this crime as grave breaches of the four Geneva conventions( GC I – IV). For this crime to be committed, there must be the existence of an armed conflict. The ICTY in Tadic’s case (Supra) defines an armed conflict as a resort to armed forces between States. Apparently, there is a resort to armed forces between Russia and Ukraine. So an international armed conflict situation exists.
Russia has committed a plenitude of war crimes. It destroyed homes and properties belonging to civilians contrary to Article 8(2)(b)(ii)of the Rome Statute, Article 51 of GC I, and Article 51 of GC II, It destroyed a hospital in the Mariupol Region contrary to Article 8(2)(b)(ix) of the Rome Statute and Article 14 of GC IV, it attacked properties dedicated to religion, historical monuments, arts and science, and other purposes contrary to Article 8(2)(b)(ix) of the Rome Statute and Article 56 of the Hague Regulation of 1907 amongst other extant laws. With this understanding, Russia has committed war crimes in Ukraine.
Finally, with regards to the crime of aggression, Article 8 bis of the Rome Statute provides to the effect that this crime is committed when a state carries out an act of aggression against another state. An act of aggression on the other hand is the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another State. Russia is guilty of this.
Who bears liability for these crimes?
Article 25(3)(b) of the Rome Statute provides for individual Criminal responsibility where a person orders, solicits, or induces the commission of such a crime. Accordingly, the president of Russia Vladimir Putin bears individual criminal responsibilities for ordering the commission of these crimes. Also, the State of Russia bears State Responsibility for failure to fulfill its obligation stipulated in Common Article 1 to the 4 Geneva Conventions. Russian Military Commanders bear command responsibility under Article 28 of the Rome Statute.
On the Jurisdiction of the ICC to try for these crimes, it would appear that the court lacks jurisdiction in this matter since both States are not Parties to the Rome Statute. However, Article 12 of the Rome Statute allows States which are not parties to the statute to accept the jurisdiction of the Court under a specified scope. History shows that Ukraine has accepted the jurisdiction of ICC twice – one in April 2014 and the other in September 2015. Since Ukraine has accepted the jurisdiction of the Court twice, it automatically granted the court jurisdiction over crimes committed in its territory since 2014 till date. The implication of the acceptance of jurisdiction by Ukraine is that the Court can now try any person suspected of committing a crime in the Ukrainian territory, including Russia. This is strongly arguable, however.
Conclusively, evidence abounds that Russia has committed war crimes and some elements of Crime against Humanity in Ukraine. The president of Russia and its military commanders bear liability for these crimes. The ICC has jurisdiction over the matter by the acceptance of its jurisdiction by Ukraine. However, Russia may put up a stiff argument against the jurisdiction of the Court especially because of the Kremlin agreement which ousted the jurisdiction of ICC over any of its nationals. Finally, it is unlikely Russian president being a sitting president would stand trial at the ICC.
Written by Edem Uwem. Edem is an International Law enthusiast with a deep interest in International Criminal Law, International Humanitarian Law, and International Human Rights Law. He has read and researched extensively on these areas. Having worked with an international organization based in Slovakia, he hopes to use his knowledge of International Law to encourage respect for the principles of the Laws of War, especially in armed conflict situations.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
This publication is not a piece of legal advice. The opinion expressed in this publication is that of the author(s) and not necessarily the opinion of our organisation, staff and partners.
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