About the author: Rhia Mehta (LL.M Candidate, Class of 2022) is a contributor to Travaux.
Introduction
Global news outlets are rife with evidence of Russia committing atrocities in Bucha, Ukraine. Photo-journalism has reported the shooting of a man walking alongside his father, who in bearing witness to the murder of his son wished for the bullet to have aimed for him instead; the decaying body of a gunned grandmother, continuing to be protected by her dog; the body of an unidentified woman raped and lying naked in a potato cellar; and the body of a son lying on the sidewalk, shot while he sneaked out to get a loaf of bread from some neighbours.
Ukrainian President Volodymyr Zelensky narrated these allegations in detail during the United Nations General Assembly’s (UNGA) emergency session on April 7, 2022, which led to the UN body voting in favor of Russia’s suspension from the United Nations Human Rights Council (UNHRC).
The UNHRC was created in 2006 with the adoption of Resolution 60/251. The UNHRC has 47 members, serving for a period of 3 years, elected by the majority of the UNGA through direct and secret ballot. The UNHRC demands that “..with membership on the Council comes a responsibility to uphold high human rights standards.” Therefore, the UNGA is obligated, in the exercise of its electoral powers, to consider the candidate States’ involvement in the protection and upliftment of human rights.
The Russian Federation was elected to the UNHRC on January 1, 2021, with the expiry of its term in 2023. However, on April 7, 2022 its term was cut short by a 93 members majority voting in favor of its ouster. Russia’s suspension was sought in compliance with Article 8 of Resolution 60/251, which allows for the suspension of a State’s right to membership of the UNHRC, by a two-thirds majority of the members present and voting when the concerned State “commits gross and systematic violations of human rights.” The United States’ envoy to the UN, Linda Thomas Greenfeild, made the case for its dismissal
In anticipation of the vote, Ukrainian Ambassador Sergiy Kyslytsya implored the UNGA caucus to support the resolution, especially in the recent light of the massacre of hundreds of civilians in the Ukrainian town of Bucha. Emphasis was laid on the murder, torture, rape, kidnapping and robbery of “peaceful residents” by the “Russian Army”. Kyslytsya petitioned that a vote against the resolution would mean “pulling a trigger, and it means a red dot on the screen, red as the blood of the innocent lives lost.” Similarly, the US urged Russia’s suspension calling its participation in a body protecting human rights a “farce” in light of its recent brutalities.
Russia’s Violation of International Law
The allegations of Russia’s violation of international law are two-pronged. First, the crime of aggression, perpetuated by Russia’s wilful infringement of Ukraine’s territorial integrity. Second, Russia’s violation of the laws of armed conflict.
Article 2.4 of the UN Charter requires that all Member States “refrain . . . from the threat or use of force against the territorial integrity or political independence of any state . . . ” The requirement to adhere to this rule by Member States is absolute, with only two exceptions specifically carved out. The first is when the Member State is acting in self-defense. Russia may purport to justify its invasion under Article 51 of the UN Charter, which provides that a Member State’s inherent right of individual self-defense shall not be impaired if it is under an armed attack by another State. However, this is not a claim Russia can sustain. Russia was not under an armed attack from Ukraine to have acted in self-defense. The second exception is when, under Chapter VII of the UN Charter, the United Nations Security Council (UNSC) authorizes the use of force. This was also not the case in the present scenario.
Russia’s military intervention is further alleged to have violated the laws of armed conflict. These laws were confirmed through the adoption of the Geneva Conventions, requiring signatories to abide by established rules of conflict, essentially encompassing principles enshrined under international humanitarian law. Specifically, the law unyieldingly restricts Member States from targeting civilians during armed conflict. Not only is there an absolute prohibition on attacking a territory distinctly populated with civilians, but also on attacks aimed at territories where a clear distinction between the occupation of combatants and civilians cannot be easily identified. Attacks in violation of such prohibitions are recognized as war crimes.
Legal Recourse Available to Ukraine
Notably, Russia’s acts of aggression come in the face of the International Court of Justice’s (ICJ) order on provisional measures, dated March 16, 2022, in the matter of Ukraine v. Russian Federation (Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide). Russia did not participate in the oral proceedings. The proceedings were filed by Ukraine seeking the rightful interpretation of the Genocide Convention. Particularly, Ukraine sought to negate Russia’s allegations that Ukraine had authorized the genocide of Russians in the Ukrainian territories of Luhansk and Donetsk. And further that such alleged genocide by Ukraine triggered Russia’s right to take unilateral military action in Ukraine. In its order, the ICJ ruled in favor of Ukraine, inter alia directing that Russia immediately suspend all military operations that it commenced on February 24, 2022 on Ukrainian soil.
Ukraine may also consider holding Russia accountable for its actions before the International Criminal Court (ICC). The ICC only has direct jurisdiction over States that have acceded to the Rome Statute, which is the statute of the Court. The ICC therefore cannot exercise direct jurisdiction over Russia, but it can exercise its jurisdiction over the crimes Russia has committed within Ukrainian territory. Since Ukraine has accepted the ICC’s jurisdiction, the Court can direct investigation into the crimes committed on its land. Further, it is notable that the ICC holds jurisdiction over individuals and does not specifically focus on the States. As such, Ukraine may consider arraying the Russian President Vladimir Putin as a party-Defendant. Effectively, to hold Putin directly responsible, the ICC will have to test his role in the Russian invasion against the concept of ‘command responsibility’, which requires assessing whether or not the alleged individual, whether in his military or civilian capacity, exercised effective control over the acts alleged in conflict, even though he may not have been the one directly committing the acts.
Conclusion
Despite such prosecutions, the fact remains that the UN bodies, both the ICJ and ICC do not have much power to enforce the execution of their orders. As such, the enforcement of any verdict against Russia and/or Putin will have to be achieved through the powerful harmonious culmination of global political powers, all collectively fighting the war against human brutalities, just as they did in suspending Russia from the UNHRC. It will take the sacrifice of personal political agendas and of favorable diplomatic relations for a unanimous global political will to ensure culpability and the prevalence of justice.