The author of this blog is Ritika Sharma. She is the Founder of the blog, HUMAN.DROITS, and is also an LL.M. Graduate from the Geneva Academy of International Humanitarian Law and Human Rights. She can be reached at ritika4523@gmail.com.
This is the third blog in the series 'Ukraine-Russia Conflict'.
First Blog: Part 1 - Ukraine-Russia Conflict: A Peek into the History
Second Blog: Part 2 - Ukraine-Russia Conflict: The Invasion and Breach
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| Slogan: Freedom for Ukraine |
Introduction
The news that Ukraine wants to join NATO was in the limelight when the invasion began. The Ukrainian government was seeking protection under Article 5 of NATO. Article 5 says, "the principle of collective defense is at the very heart of NATO's founding treaty. It remains a unique and enduring principle that binds its members together, committing them to protect each other and setting a spirit of solidarity within the Alliance". If Ukraine was a member of NATO, the countries who are part of NATO could have used the collective defense principle against Russia's armed forces.
This Conflict has already violated multifarious important conventions and instruments in the international arena. The fact that international law is not able to stop this massacre resulted in a huge uproar, leading to people highly condemning it for being a weak law.
This blog conversation aims at understanding the consequences of the breach of international law by Russia and furthermore delves into the reasons that highlight why international law has been enormously criticised post this armed conflict.
Veto Power in UNSC
As discussed in the previous blog, Russia's invasion and use of force vividly violate Article 2(4) of the UN Charter. Then, why has this peace-making organisation failed to take the required steps and protect the sovereignty of Ukraine? Let's understand this.
The principal organ of the United Nations from where the aid was expected was the Security Council, whose primary responsibility is to maintain 'international peace and security'. Unlike other organs of the UN, the Council has the power to take decisions that the Member States are obligated to carry out. The Security Council could have easily demanded the cessation of force and invasion by Russia. However, the Council takes decisions and forms an opinion with the voting system.
Security Council has 15 members, out of which 5 are permanent members. To take any effective step on any matter, 9 affirmative votes are essential, out of which votes of 5 permanent members are mandatory to obtain. The 5 permanent members of the UNSC are China, France, the Russian Federation, the United Kingdom, and the USA. This clearly signifies that the Security Council cannot intervene in any international dispute without Russia's agreement. Russia can exercise veto power and cast a negative vote. This clearly hampers the intervention by the United Nations in this disastrous conflict.
Claims and objections in ICJ
As both Ukraine and Russia are parties to the Genocide Convention, therefore, Ukraine brought this case to the International Court of Justice on 27th February 2022. Here, the weak enforceability mechanisms have become a roadblock to eliminating the dreadful attacks on the parts of Ukraine.
The jurisdiction of ICJ can be understood with the following two aspects:
- ICJ has jurisdiction over countries if they have submitted to its compulsory jurisdiction.
- ICJ exercises jurisdiction on a treaty basis.
Neither Russia nor Ukraine have submitted to its compulsory jurisdiction, which leaves the second option of dealing with this matter on a treaty basis, and fortunately, both countries have submitted to the ICJ's jurisdiction for the cases that fall under the Genocide Convention. Consequently, Ukraine sought provisional measures to suspend Russia's armed attacks.
However, jurisdictional objections were raised by Russia, and Ukraine was directed to respond to such objections before 3rd February 2023. This resulted in the filing of the interventions under Article 63 of the ICJ Statute by other nations in support of Ukraine, and the case is still pending.
The jurisdictional issues in ICC
This attack has also violated Article 8b of the ICC Rome Statute. This provision states, "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations".
The issue which is hindering Ukraine's claim in the International Criminal Court is that while Ukraine has submitted to its jurisdiction twice, Russia is not a state party to the Rome Statute. ICC generally exercises its jurisdiction over non-state parties in some offences under Article 12(3) of the Rome Statute. As the conflict emerged in 2014, following Ukraine's declaration, the ICC Prosecutor opened a preliminary investigation, and owing to the massive violence in the territory of Ukraine in February 2022, the investigation was expanded. However, no charges or arrest warrants have been issued by the ICC till now.
It is also crucial to note that ICC plays the role of 'court of last resort'. In other terms, the role of ICC comes into the picture when a state is not well-equipped to tackle its criminal justice system. This 'last-resort' status of ICC coupled with the fact that it cannot exercise jurisdiction over Russian nationals according to Article 15 of the Rome Statute, has limited the ambit of ICC in this conflict. Article 15(5) reads, "in respect of a State that is not a party to this Statute, the Court shall not exercise its jurisdiction over the crime of aggression when committed by that State’s nationals or on its territory".
Final Remarks
Distinctly, there are hindrances within the system. It seems that only the five permanent members of the Security Council have the potential to initiate any Security Council efforts to commence or stop any war between the member states, including themselves. This conflict demands a cover-up of such loopholes in international law, so as to stretch its practicality in the real-world situation.
Russia's dominance in the UN, together with deficient enforceability mechanisms in the ICJ, and jurisdictional issues in the ICC, have stretched this armed conflict. No more potent reasons are necessary to highlight the indispensable need to reform and re-establish several aspects of international law.
References
https://ilg2.org/2022/02/28/russia-v-ukraine-the-limits-of-international-law/#:~:text=Yet%2C%20despite%20this%2C%20international%20law,as%20Russia%2C%20have%20veto%20power.
https://crsreports.congress.gov/product/pdf/LSB/LSB10704#:~:text=Subsequently%2C%20more%20than%20forty%20parties,warrants%20related%20to%20the%20invasion.
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