Category: Ukraine

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Aggression International(ised) prosecutions Ukraine

Why a tribunal for aggression is unrealistic, why the ICC should step aside, and why a tribunal established by the UNGA is the optimal option

Bringing fresh ideas to an ongoing debate of some duration and substance rarely happens. But do read on for my brief take on why establishing a boutique tribunal to try Putin for the crime of aggression is unrealistic, and why there may be a more practical and achievable solution in investigating and prosecuting those most responsible for crimes being committed in the Russo-Ukrainian war – save for the crime of aggression.

Most agree that Putin’s war-making was unprovoked, unjustified, and unlawful. I say most because there are some who believe that Russia had legitimate reasons for initiating what Putin has characterized as Russia’s “special military operation.” Most also agree – or seem to agree despite any legitimate findings by an independent international tribunal – that Putin is guilty beyond any doubt of the crime of aggression. And many of those who have made their findings and conclusions of Putin’s guilt, call for the establishment of a tribunal with the singular purpose to try and convict Putin, expeditiously, for aggression. Of course, they envisage that a few others would also be charged and tried as well for aggression, but Putin is the great white whale (though it should be remembered that Moby Dick was both Ahab’s obsession and the prize he could not have).

Due process niceties aside (apologies for being a stickler), by all media accounts, academic panel discussions, and political rhetoric, Putin has been found guilty – and not just for the crime of aggression, but for war crimes and crimes against humanity. As those pushing for this boutique tribunal see it, setting up a tribunal to try Putin just for aggression would simplify matters of proof, and though not publicly espoused, could/would also serve as a midwife for establishing the crime of aggression as customary international law (CIL). Its adoption by the International Criminal Court (ICC), such as it is, does not make it so. Were a recognized and legitimate international tribunal for aggression established that would be a game-changer, perhaps crystalizing the crime of aggression as CIL – even if the United States, China, Russia, India, and most likely France and the United Kingdom and many more states would hold otherwise.

If only we had this boutique tribunal on aggression. How simplistically naive.

I remain optimistic that the day will come when the crime of aggression is unquestionably accepted as CIL. And yes, it is noble to herald the establishment of an international tribunal on aggression with jurisdiction to investigate, prosecute, and convict any head of state and others engaged in aggression wherever they may hail from.

But let’s get real.

It is an article of faith that Putin – an autocrat presumably running Russian affairs unimpeded by liberal democratic refinements and unconstrained by his inner circle of oligarchs and upper echelon-cum-latter-day apparatchiks – is responsible for and guilty of all crimes that have been and are being committed. Perhaps so. But as in any conflict or war, nothing is ever black and white – especially if viewed from all sides. Admittedly, some of my personal views are shaped by what I see in the media, but I also know, from professional experience, that there is much that I do not know.  That is why I am a firm believer in both substantive and procedural justice.

Support for one side of the conflict, even if it seems morally and legally just, does not prove guilt of the other side. For that, we need independent tribunals with a level playing field for any accused, irrespective of his or her national origin. Troublingly, we hear nothing of crimes or atrocities having been committed by Ukrainian soldiers, officers, or political elite, and thus query whether the legion of motley investigators collecting evidence against the Russian forces and associated private armies and mercenaries, are conducting any serious investigations against Ukrainians forces for any alleged crimes (see Amnesty International’s press release about Ukrainian fighting techniques endangering civilians here). If this war is like any other war since time immemorial, it is highly likely that crimes are being committed by all sides – though not necessarily (and certainly not in this war) on the same scale.

I have not heard of anyone objecting to Ukrainians not being subject to prosecution, but then I have not heard of any investigations being conducted against any Ukrainians. I raise this to stress that if we are committed to the rule of law and to eradicating impunity in all forms, then we should be up to objectively investigating and robustly prosecuting anyone alleged to have committed crimes. For that we need impartial tribunals.

Even were it possible (I think not, but do read on) to establish a tribunal to try Putin for aggression, it seems so result-oriented as to call into question its legitimacy – irrespective of the soundness of the ultimate quality of justice rendered. Yes, perceptions matter. And it’s as if it is a zero-sum game: aggression or nothing.

Let’s take stock – realistically.

We know that the United Nations Security Council (UNSC) will not countenance the notion of a tribunal dedicated exclusively to aggression or even inclusively to other crimes – whether it is established for Putin or others. The permanent members of the UNSC with veto power – the United States, China, Russia, the United Kingdom, and France (the big five) – will not tolerate the existence of such a court. Their heads of states could easily find their heads on the proverbial chopping block. None of these states (as well as many more) have genuinely embraced the ICC’s adoption of the crime of aggression. Neither China nor Russia will countenance a UNSC tribunal as in the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), even if the crime of aggression was not included as one of the statutory crimes.

That leaves the United Nations General Assembly (UNGA). The UNSC’s big five have no veto power to stop any discussion in its tracks, but virtually all have sufficient clout and persuasive influence (it would be a perversion to call it soft power considering the pressure attached with stimulative measures of negative consequences some if not all of the big five will apply), to sink any efforts by the UNGA to establish a tribunal that either exclusively or inclusively has aggression as one of its enumerated crimes. Another non-starter, though some are convinced otherwise.

The ICC, we know, has no jurisdiction to try Putin on aggression.

National courts which exercise universal jurisdiction may be less inclined to prosecute a head of state for aggression considering the immunity issue (arguably not an issue at an international court) – though not an issue with war crimes and crimes against humanity.

Where does that leave us?

The simple answer – which others I am sure have considered – is for the UNGA to establish an ad hoc international tribunal, dedicated to try war crimes, crimes against humanity, and genocide committed by anyone during the Russo-Ukrainian war, with a temporal jurisdiction to encompass events as far back as 2014 and spanning the territories of Russia, Belarus, Ukraine, and perhaps elsewhere. Without the crime of aggression, this is feasible. And the best option.

Were the UNGA to establish such a tribunal, it should take precedence over the ICC. Despite the headline-grabbing rhetoric of the Prosecutor and the abundance of resources offered to his office for investigating crimes in Ukraine, the ICC is only really suited to try but a very few cases – and even that may be a stretch if it is to seriously fulfill its mandate in dealing with other mass atrocity crimes in areas under its jurisdiction. Why, it can barely manage to eke out an occasional conviction as it is – even after years and years of preliminary examinations and investigations. No doubt there will be some turf-war push-back from the ICC’s Office of the Prosecutor (ICC OTP), but to paraphrase a line from the film Pulp Fiction, that is pride [and ego] talking. The simple truth is that it is much more efficient and effective to have an ad hoc tribunal dedicated to investigating and prosecuting anyone alleged to have committed mass atrocity crimes in the Russo-Ukrainian war.

My point is that the UNSC and the ICC are not the only game in town.  The UNGA established the Extraordinary Chambers in the Courts of Cambodia. Hardly a perfect example, but a partnering model has  much to be said for it.  From a legitimacy point of view,  a tribunal is more likely to be widely accepted when it will investigate, prosecute, and judge all sides to the conflict – not just Putin, his cronies and stooges, Russian officers, and soldiers. Such a tribunal would require Ukraine to commit.  The crime of aggression not being on the table even for discussion, should enable a more focused and less detractive discussion for a quick establishment of a court.

The procedure can (and I advise should) be inspired by/modeled after the ICTY. Lessons learned over the years and from Mechanism for the International Criminal Tribunals can be applied – especially in the selection of judges (bluntly, some ICTY and ICTR judges were ill-qualified, and there should be no second tier judges as at the ICC).  The office of prosecution should have a unified structure with functional control over the investigative section, which should be subordinate to and under the direct supervision of the prosecutor and his or her deputies.

In sum, my humble advice is for those pushing for a boutique tribunal on aggression to abandon their Quixotic efforts (and rhetoric), as well as for the ICC OTP to support the establishment of a UNGA ad hoc tribunal dedicated to investigating and prosecuting anyone alleged to have committed mass atrocity crimes in the Russo-Ukrainian war.

Editor’s note: this post was first published on michealgkarnavas.net on 23 February 2023. I thank Michael very much for authorising the reproduction of the post on Maastricht Blog on Transitional Justice.

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Ukraine Uncategorized

Prosecuting Atrocities in the Ukraine Conflict in Ukrainian Courts: Should All Roads Lead to The Hague?

A meme doing the rounds on Twitter shows a road sign, apparently repainted by Ukrainians to confuse invading Russian soldiers, with all directions pointed towards: ‘Гаага’ (The Hague). Whether real or photoshopped, the point is cleverly made. But when it comes to prosecuting alleged war crimes and crimes against humanity (CAH) in Ukraine should all roads really lead to The Hague?

Russia’s invasion of Ukraine, which began on 24 February 2022, is very much a war of the 21st century. Videos and images of alleged atrocities (e.g., attacks on (apparently) civilian objects such as maternity hospital and a theatre sheltering children marked ‘Дети’ (children) in Mariupol) have been posted to social media platforms in vast numbers in almost real-time. At a similarly break-neck speed, the international law community has debated forums for prosecuting international criminal law (ICL) violations including: an Ad-hoc or Special Tribunal for the crime of aggression, the International Criminal Court (ICC) and universal jurisdiction (e.g., here, here, and here). Remarkably little attention, however, has been given to Ukraine’s capacity to prosecute atrocities, namely war crimes and CAH, committed on its territory before its own courts. 

Ukrainian emergency workers and volunteers evacuate an injured pregnant woman from a maternity hospital that was damaged by shelling in Mariupol on 9 March 2022. Photograph: Evgeniy Maloletka/AP

At the time of writing, the Ukraine conflict’s outcome is highly uncertain. Negotiations between Ukrainian and Russian representatives are ongoing, with some reports that an agreement is within reach. Russia’s invasion is on the backfootmaking a stalemate possible. It thus remains feasible that the Ukrainian government will retain, or even regain, effective control over substantial swathes of territory and/or that conflict may become ‘frozen’ in the medium to long-term. As such, this blogpost considers the possibilities for prosecuting atrocities committed in Ukraine in its own courts under the Ukrainian Criminal Code (UCC). 

The Ukraine Conflict

Russia’s invasion of Ukraine is a dramatic escalation in hostilities between the two countries, both in terms of the geography and brutality of violence. All major cities in Ukraine have been attacked. Less than a month after the start of the invasion the official (conservative) death toll stands at over 900 (this is likely a major underestimate as it is currently impossible to count the dead in some places – in Mariupol, for example, the dead are left out in the street and buried in mass graves).  The conflict in Ukraine is not new, however. According to the assessment made by the ICC’s Office of the Prosecutor (OTP) during its preliminary examination (concluded 11 December 2020) there has been an international armed conflict between Ukraine and Russia since 26 February 2014 in Crimea and since 14 July 2014 in the Donbas (paras 260 and 266). A parallel non-international armed conflict between Ukrainian government forces and ‘separatist’ forces in the Donbas has been underway since 30 April 2014 (para 266). Moreover, the OTP recorded in excess of 1,200 crimes including: wilful killing/murder; torture and inhuman/cruel treatment; outrages on personal dignity; and rape and other forms of sexual violence (para 278-9). Prior to 24 February 2022, around 14,000 people (mostly Ukrainians) were killed and 1.5 million internally displaced by the war. 

Capacity

The outbreak of conflict in 2014 revealed Ukraine to be ill-equipped to prosecute atrocities committed on its territory in its courts. Criminal investigators did not know how to systematically gather and structure evidence for war crimes cases.  Article 438 of the UCC on ‘violations of the rules of warfare’ proved challenging for Ukrainian prosecutors. A brief catch-all provision, Article 438’s operationalisation turns largely on the phrase: ‘any other violations of rules of warfare recognised by international instruments consented to by the Verkhovna Rada [Ukraine’s parliament]’ (emphasis added). As noted by Ukraine’s former Deputy Prosecutor, Gyunduz Mamedov, in essence this means: ‘for an effective investigation of this category of crimes, it is necessary to know these international documents, and there are about 30 of them’ (among them are the Geneva Conventions and Additional Protocol I and II). Consequently, Ukrainian prosecutors, who lacked expertise in international humanitarian law (IHL) and ICL, instead charged crimes committed in connection to the conflict as more familiar ‘normal’ offences – e.g., murder or membership of a terrorist organisation.

In recent years, however, Ukraine has made substantial progress in its capacity to prosecute war crimes. In October 2019, Ukraine established a dedicated War Crimes Unit (The Department of the Office of the Prosecutor General for the Investigation of Crimes Committed in the Conflict) at the initiative of then-Deputy Prosecutor Mamedov, who had built-up experience prosecuting conflict-related cases as the Prosecutor of Autonomous Crimea and on MH17 with the Dutch-led Joint Investigation Team (see also here). Under Mamedov’s leadership, the Unit centralised cases linked to the conflict (which were previously investigated individually by regional departments), set up cooperation networks with human rights groups documenting ICL violations and, with international assistance, trained Ukrainian jurists and investigators (see here, here and here).  Importantly, the new Unit also worked to reclassify conflict-related cases under Article 438. As war crimes (and CAH) are exempt from statute of limitations and amnesties under customary international law (CIL) this shored up the viability of future prosecutions. To date, the Unit has secured three convictions for war crimes (two in absentia and one in propria persona) and opened another 21 cases against 41 people under Article 438.

Deputy Prosecutor General Gyunduz Mamedov taking part in the 19th session of the Assembly of States Parties to the Rome Statute in The Hague in 2020. Photo / MFA The Netherlands

Another significant development is ‘On Amendments to Certain Legislative Acts on the Enforcement of International Criminal and Humanitarian Law’ (Bill 2689). As already mentioned, the complexity of Article 438 has slowed war crimes prosecutions. Work to simplify Ukraine’s legislative framework and bring it into step with contemporary ICL norms was initiated in 2016. The end product of this five-year endeavour was Bill 2689  which, inter alia, amends the UCC to: i) provide a comprehensive list and definitions of war crimes; ii) and CAH in line with the Rome Statute (RS) (CAH are absent from the UCC as is); iii) legislate for modes of command responsibility in line with the RS; iv) provide for universal jurisdiction. As such, as well as facilitating domestic prosecution of atrocities, Bill 2689 also serves to ease issues of complementarity and cooperation with the ICC and helps Ukraine fulfil its treaty and customary IHL obligations. Importantly, Article 17 of Bill 2689 provides for its retroactive application (this is in keeping with the principle legal certainty as war crimes and CAH are criminalised under CIL – see Article 7(1) European Convention on Human Rightsand Article 15 of the International Covenant on Civil and Political Rights, both of which Ukraine is a State Party to).

Credibility

Ukraine’s capacity to carry out war crimes and CAH prosecutions, however, should not be viewed through rose-tinted glasses. Bill 2689 passed its second (final) reading at the Verkhovna Rada (Ukraine’s parliament) on 20 May 2021 and was sent to the President’s Office on 6 June 2021. Under Article 94 of the Ukrainian Constitution, it should have been signed, and thus enacted, or returned for review with comments by Ukraine’s President Volodymyr Zelensky within 15 days (i.e., by 22 June 2021). Disappointingly, it is still awaiting his signature despite repeat calls by civil society groups, including the Coalition for the ICC, for Zelensky to enact it. That Bill 2689 has not been handled in accordance with Ukraine’s Constitution is troubling. According to political and legal commentators (writing prior to the Russian invasion) this reluctance stems from concerns among Ukraine’s political and military elite that it could be used to prosecute government forces (as well as anti-government forces) for ICL violations. Speaking to Radio Svoboda, Vladimir Gorbach, a political analyst at the Centre for Euro-Atlantic Cooperation commented: ‘in military circles there are fears that this law may be turned against the defenders of Ukraine, especially those volunteers of 2014-15.’ Notably, this chimes with analyses of Ukraine’s reticence to ratify the Rome Statute as based on a politicised (mis)understanding of the ICC and ICL. Another concerning development is the removal of Mamedov from his position at the War Crimes Unit in June 2021 – a move that Ukrainian human rights groups have criticised as detrimental and a politicised ousting. Meanwhile, Ukraine must work ensure that trial rights are fully upheld.

Nina Branovytska (holding a photo of her son, Ihor Branovytsky, who was tortured by separatists) and former prisoner of the DNR, Igor Kozlovsky, attend a demonstration in support of Bill 2689 near the President’s Office in Kyiv on 19 August 2021. Photo Serhii Nuzhnenko / Radio Svoboda

That said, while it may be a case of two steps forward one step back, Ukraine’s progress in prosecuting ICL violations over the last eight years, in highly challenging circumstances (namely the conflict in Donbas and occupation of Crimea), should not be overlooked. Ukraine has successfully prosecuted war crimes cases under its existing legislative framework. Bill 2689 has passed its most significant hurdle of receiving parliamentary approval. Article 17, which provides for the law’s retroactive application, means that it could be applied to the entirety of the Ukraine conflict as soon as Zelensky signs it. Moreover, despite the hesitation over Bill 2689, Ukraine has prosecuted pro-government forces for atrocities committed in the conflict. A landmark case (widely viewed as a litmus test in this regard) was the trial of 12 members of the notorious Tornado battalion. Despite demonstrations outside the courtroom and political pressure from right-wing lawmakers who claimed the charges were ‘fabricated’, the men were convicted in April 2017 of abuses, including illegal detention and sexual assault, committed while policing Pryvillia – a town near the frontline previously controlled by separatist forces. 

Two Tornado detainees being led into Kyiv’s Obolon district court in August 2016. Photo by Serhii Nuzhnenko / Radio Svoboda

Another important consideration is that Ukraine does not have to go it alone. Following an unprecedented referral by 40 State Parties the ICC’s Prosecutor, Karim Kham, announced the official opening of an investigation into the situation in Ukraine on 2 March 2022. The ICC is the most appropriate forum for prosecuting officials that either enjoy immunity before Ukraine’s courts (i.e., sitting Heads of State or Foreign Ministers) or who are who are so high-profile that international scrutiny is desirable. However, the vast majority of ICL violations in Ukraine will not end up in The Hague. The Rome Statute’s (RS) gravity threshold (Articles 17(1)(d)) is high and must be satisfied for each case. Additionally, the OTP prosecutes selectively (normally with the goal of building up towards cases against prolific individuals). Moreover, the ICC is a Court of last-resort which prosecutes only when States are ‘unwilling or unable’ to do so (Article 17). The RS’s provisions on the principle of complementarity (Articles 1, 17, 53) go beyond simply ensuring non bis idem. The RS subordinates the Court to (properly carried out) domestic investigations and prosecutions and, moreover, encourages them. Article 93(10) provides: ‘the Court may, upon request, cooperate with and provide assistance to a State Party conducting an investigation into or trial in respect of conduct which constitutes a crime within the jurisdiction of the Court’. The opening of the ICC investigation therefore also provides an opportunity for the Court to bolster Ukraine’s capacity to prosecute ICL violations. Another avenue of support open to Ukraine is the structural investigation (Strukturermittlungsverfahren) opened by Germany, under the principle of universal jurisdiction. Structural investigations can be opened when there is evidence a crime has taken place, but perpetrators have not yet been identified. It allows for fast collection of evidence and has proven an effective tool for prosecuting and structuring war crimes cases. Such evidence could also be shared with Ukraine, which is a State Party to the European Convention on Mutual Assistance in Criminal Matters.

Ukrainian President Volodymyr Zelensky addresses the German parliament via video call in Berlin on 17 March 2022. Photo / Getty Images

Conclusion

The war in Ukraine started eight years ago. During this time Ukraine, with international assistance, has made substantial progress in investigating and prosecuting ICL violations. Given the escalation in the conflict, Bill 2689 is more relevant than ever. Zelensky should enact it without further delay. Doing so will signal to the international community Ukraine’s commitment to fulfilling its obligations under IHL and upholding ICL even in its darkest hour. Ukraine will undoubtedly need international support in prosecuting atrocities, but it is available and should be both sought and provided. The benefits of conducting trials close to affected communities in conflict and post-conflict societies are well-documented in the transitional justice literature, both in regard societal healing and bolstering rule of law after seismic events. The outcome of the war in Ukraine is deeply uncertain. But nearly a month in, it is apparent the capabilities of Ukraine’s military were drastically underestimated by most. We should not make the same mistake with its legal system. Ukraine is a sovereign State and, as such, insofar as it is possible in accordance with the rule of law, it is desirable that the bulk of war crimes and CAH committed on its territory are prosecuted in its own courts.

Harriet Salem. Harriet is an LLM student in international law (specialisation in human rights law) at Maastricht University. She also holds an MA in International Politics with distinction from the University of Manchester. She has worked as a journalist for over ten years and reported extensively on the conflict in Ukraine. 

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Ukraine

Recognition of states and legality of the use of force in light of the situation in Ukraine

This post is based on the presentation delivered by its author at Maastricht University on 16 March 2022, on the occasion of the academic event organised by the European Law Students Association (ELSA).

Maastricht University Faculty of Law

During the last three weeks, we have had the chance to read lots of information about the situation in Ukraine. Given the nature of the situation – an international armed conflict – and the gravity of the conflict in terms of the scale of the military operations and the high number of victims reported, much has been said about the conflict. For us, international lawyers and law students, the interesting thing is that many questions raised in the media and in social media concern international law: whether international law is really law, whether States can have recourse to armed force whenever they deem fit, whether anyone or anything can be a lawful military target in times of armed conflict, etc. True, raising questions is fine, but taking the time necessary to examine such questions in detail is even better. However, neither the media, nor social media devotes much time or space to such endeavor, which seems to be in keeping with so many other aspects of life in times of modern liquidity.

In this post I will adress the issues of recognition of States and the legality of the use of armed force in international relations, in light of the situation in Ukraine.

Ukraine | History, Flag, Population, President, Map, Language, & Facts | Britannica
Source: Encyclopaedia Britannica

Having said that, I would like to make my substantive points right now: one, Russia’s recognition of Luhansk and Donetsk as States is unlawful; two, the use of force by Russia against Ukraine is also unlawful; and three, Russia is internationally responsible towards Ukraine, which generates legal consequences not only for Russia, but also for other States.

The recognition of Luhansk and Donetsk as States is unlawful

In March 2014, Russia occupied the Ukrainian region of Crimea, claiming it was necessary to protect the rights of Russian citizens residing there. In the same month, Russia annexed Crimea, after Crimeans voted to integrate with Russia in a controversial referendum (see here). Two months later, pro-Russian separatists in Donetsk and Luhansk declared themselves as independent States (see here). 

donetsk Premium Photos, Pictures and Images by Istock
Donetsk. Credit: Gety Images/Stockphoto

The armed conflict between the Ukrainian government and the separatists have killed thousands of people since April 2014. Even if Russia has denied its involvement in the armed conflict, Ukraine and NATO have reported the presence of Russian troops near Donetsk, as well as cross-border military attacks from Russian territory (see here).

Russia recognised Donetsk and Luhansk as independent States on 21 February of this year, while the armed conflict between the Ukrainian government and the separatists was ongoing and the possible outcome of the conflict was still uncertain. In fact, only approximately one third of the territories of Donetsk and Luhansk were under the effective control of the separatists (see here). Both separatist regions have been completely dependent on Russia since 2014: Russia has distributed approximately 800,000 passports among residents of Donetsk and Luhansk; it has provided considerable financial support to the authorities of the separatist regions; these authorities adopted the Russian ruble as the official currency of the territory under their control; etc. (see here).

So, against this background, are Donetsk and Luhansk really States?

The criteria for statehood are laid down in the Montevideo Convention of 1933 and in customary international law. Neither Russia nor Ukraine is a State party to the Montevideo Convention, but they are bound by customary law, like any other State.

According to the Montevideo Convention and customary law, a State should possess a permanent population, a defined territory, a government, and the capacity to enter into relations with the other States (generally interpreted by scholars as meaning independence of the other States) (see here).

It was evident for everyone, including Russia, that Donetsk and Luhansk did not meet the criteria for statehood at the time of Russia’s recognition: only a fraction of these regions was under the effective control of the separatists; and the separatists were in complete dependence of Russia. 

Moreover, under international law, minority groups do not have the right to secede from the parent State, without the latter’s consent. In this situation, Ukraine has not consented to the secession of both regions.

Donetsk and Luhansk are thus not States under international law. 

Luhansk. Source: medium.com

So, what are the legal consequences of the Russian recognition of the two separatist regions as States, under international law?

The recognition of a State by another simply means that the recognising State accepts the international legal personality of the other State, with all the attending international rights and obligations (see here), such as the right of sending and receiving diplomatic legations, treaty-making power, and immunity from domestic jurisdiction.

Recognition of States is an act of free will (see here); it is a sovereign act of States. However, recognition is lawful only if it is not made in breach of an international obligation. 

States shall respect the sovereign equality of States – including their territorial integrity and political independence – and they are bound to not intervene in the internal affairs of another State (see here). These obligations have become part of customary international law (see here).

As noted above, Russia’s recognition was made when the separatists did not have effective control over a substantial part of the territories of the separatist regions, and when the possible outcome of the conflict was uncertain. In so doing, Russia’s recognition was premature and it was thus a breach of the principle of non-intervention (see here) and of the principle sovereignty equality of States.

For these reasons, Russia’s recognition of Donetsk and Luhansk constitutes an internationally wrongful act. 

Why did Russia recognise both regions as States?

States do not admit violations of international law, at least not in public. To avoid international responsibility, they will typically deny the alleged facts, they will allege different facts, or they will put forward legal justifications.

Russia was obviously aware of the illegality of the act of recognition, but it needed to recognise those regions as States, in order to rely on the right of collective self-defence, as a legal justification for the upcoming armed attack on Ukraine.

The use of armed force against Ukraine by Russia is unlawful

As you probably know, the prohibition of the threat or use of armed force is a general principle of international law and one of the cornerstones of international relations.

UNSC. Source: indiatoday.com

And as you probably also know, there are two exceptions to the prohibition of the use of armed force: authorisation of the UNSC and the right of individual or collective self-defence (see here).

Russia claims to be using armed force in defence of Donetsk and Luhansk (see para. 15 of the submission to the ICJ by Russia and the Address by the President of the Russian Federation annexed to the submission, here).

ICJ. Source: ICJ

Clearly, the argument is unpersuasive.

According to the UN Charter and customary law, the right of self-defence is triggered when an armed attack occurs against a State.

However, given that Donetsk and Luhansk are not States, they cannot exercise a right that they do not have and Russia cannot exercise the right of collective self-defence, because both separatist regions do not hold the right of self-defence in the first place.

Therefore, Russia’s conduct constitutes a breach of the prohibition of the use of armed force in international relations. In light of the scale of the military operations carried out by Russia and the number of victims so far, the use of armed force by Russia is so serious as to constitute an armed attack in the sense of the UN Charter and customary law, triggering the right of self-defence by Ukraine.

The UN General Assembly is about to start. Here's what to watch for - CNN
UNGA. Source: cnn.com

Also, given the nature of the armed attack, namely a military invasion of Ukraine, the armed attack by Russia amounts to an act of aggression (see here). It is thus unsurprising that last week the UNGA qualified the Russian invasion as an act of aggression (see here).  States consider aggression so serious that the prohibition of aggression has become a rule of jus cogens, that is, a peremptory norm of international law from which no State can derogate (see here).

Legal consequences for Russia and third States

To sum up, Russia is internationally responsible towards Ukraine for the breach of the principle of non-intervention in the internal affairs of another, the principle of sovereign equality of States, and the prohibition of aggression. Consequently, considering the customary law of State responsibility (see here):

One, Russia is bound to revoke its unlawful recognition of Donetsk and Luhansk as States.

Two, Russia is bound to withdraw its armed forces from the internationally recognised borders of Ukraine (that is, including eastern Ukraine) and to refrain from any further unlawful threat or use of armed force against Ukraine.

Three, Ukraine is entitled as the injured State to invoke the responsibility of Russia for the breach of those international obligations.

Four, any State other than Ukraine is entitled to invoke the responsibility of Russia with respect to the breach of the prohibition of aggression.

Five, any State other than Ukraine has the right to adopt retorsion measures to ensure the cessation of the act of aggression, such as the broad range of economic and diplomatic sanctions adopted so far (see e.g. here).

Finally, the preceding considerations are without prejudice to any issue of individual responsibility under domestic or international criminal law. Think, for example, of the possible exercise of jurisdiction by domestic courts over war crimes, crimes against humanity, and the crime of aggression (see here), or the exercise of jurisdiction by the ICC over war crimes or crimes against humanity (see here).

Fabián Raimondo is Associate Professor of Public International Law (Maastricht University) and the Executive Editor of Maastricht Blog on Transitional Justice.