The International Court of Justice on Wednesday ordered Russia to immediately end military violence in Ukraine. The Supreme Court of the United Nations in The Hague thus confirmed a lawsuit by Ukraine against Russia. But the verdict is only symbolic. And Russia was not impressed by this, the bombing continued unabated.
[Alle aktuellen Entwicklungen im Ukraine-Krieg können Sie hier in unserem Newsblog verfolgen.]
What chance does the International Court of Justice have to enforce prosecution in this war and how is the attack classified under criminal and international law? Anne Fock, an expert in peacekeeping law at the Viadrina European University in Frankfurt (Oder), describes Russia’s use of force against Ukraine as clearly illegal. It is the continuation of what began in 2014 with the annexation of Crimea.
Since then, Ukraine has been able to invoke its right to self-defense. Russia, on the other hand, cannot do that. Even if NATO did show a presence on Russia’s borders as a hostile attack alliance, this would not amount to a Russian right to self-defense, which Russian President Vladimir Putin invoked at the start of the attack.
Attack is not self defense
For Russia, a NATO attack should have been imminent in order to invoke the right to self-defense. “The same cannot be said for Crimea, because even there NATO would not have been able to carry out an attack against Russia without further ado,” Fock said Wednesday in a Viadrina online panel.
On this point Putin was also wrong, who in his February 24 speech tried to justify the Russian attack under international law. “In this case, we can rule out Russia’s individual right of self-defense,” Fock said. Preventive measures to avoid a possible attack are also not compatible with the UN Charter. Fock categorically ruled out that aggressive war – as Putin had claimed – had any basis in international law.
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The UN Charter prohibits any military force of one state against another as contrary to international law. The same applies to a violent annexation, such as Crimea. Both are a use of force against the territorial integrity of Ukraine. Article 51 of the UN Charter regulates the right to legitimate defense as an exception to the prohibition of the use of force.
Putin had referred to Russia’s individual self-defense, as NATO’s eastward expansion posed a growing threat to Russia. However, for this to happen, there would have to be an illegal use of force of a particularly high intensity. “That does not apply to Russia with respect to NATO’s eastward expansion, as there were no hostilities against Russia,” Fock said.
Putin’s reasoning is incoherent
In addition, Putin referred to the collective right of self-defense of the self-proclaimed Donetsk and Luhansk People’s Republics. He spoke of the need to stop the “genocide” in Donbass. This would speak in favor of humanitarian intervention by the UN Security Council. Then, however, he spoke of the fact that the People’s Republics had asked Russia for help. Putin’s argument is incoherent here.
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For the people’s republics to have the collective right to self-defense, an armed attack against them should have been a prerequisite, for example, through the incursion of the Ukrainian army. But the right to self-defense is limited to independent states anyway, Fock explains. However, the statehood of the two people’s republics is in question, as they would not exist without the use of force by Russia, and are heavily dependent on Russia. That said, Russia’s current assault on Ukraine would go territorially far beyond what is necessary to defend the two People’s Republics.
Only the Russian leadership around Putin can be prosecuted for the illegal aggression of the Russian armed forces against Ukraine, explained Kilian Wegner, junior professor of criminal law, criminal procedural law and economic criminal law at Viadrina. In addition to assault, other criminal offenses include war crimes and crimes against humanity committed in the context of an attack against civilian populations. “There is evidence that this plays a role in this war,” Wegner said.
In this case, war crimes are attacks against the civilian population that are illegal under the laws of war and include excessive or even targeted harm to individuals. An example of this could be the attack on the maternity hospital in Mariupol.
Search by the International Criminal Court
The International Criminal Court in The Hague could prosecute such crimes. However, neither Russia nor Ukraine have recognized the sovereignty of the court in The Hague. However, Ukraine has now submitted to the jurisdiction of the International Court of Justice to prosecute war crimes committed on its territory.
However, the criminal offense of aggression contrary to international law can only be used against member states of the Rome Statute of the International Criminal Court, i.e. not against Russia. Otherwise, only the UN Security Council could order it, but here the Russian Federation has the right of veto.
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People wanted by the Criminal Court must be arrested and extradited by the member states of the Rome Statute if they are apprehended in their territory. This also applies to heads of state, who do not enjoy immunity here. “Whether the states involved will do that is another question,” Wegner said. In the past, this was not always the case.
The German judiciary can also act in parallel with the International Court of Justice, in the case of war crimes and crimes against humanity. Aggression contrary to international law, on the other hand, would have to be directed against Germany itself to be punishable. And the German judiciary cannot take action against sitting heads of state because they have personal immunity.
Kilian Wegner does not assume that there will be any criminal proceedings for the attack on Ukraine. Experience shows that in this type of conflict and high political figures, political power prevails over criminal justice structures. “That is why I don’t think we will see Vladimir Putin before a criminal court.” One should not have false hopes on this subject.