Russia’s ability to launch its so-called “special military operation” to undertake “denazification” in Ukraine has not so far faced international legal sanction. On 25 February, a draft UN Security Council Resolution was debated, but failed to win support after a Russian veto. Since then, the Security Council has not revisited the conflict other than a 5 April address by Ukrainian President Volodymyr Zelensky. The UN General Assembly adopted a non-binding resolution on 2 March, but without Security Council backing, the resolution is primarily symbolic.
Compared to the exhaustive and ongoing legal and political debates over the 2003 US-led coalition intervention in Iraq, Russia’s military intervention in Ukraine may appear to have received a muted legal response. All of this raises the spectre of the Lawless World of which British lawyer and author Philippe Sands wrote in the wake of the Iraq war and the so-called global war on terror.
Despite appearances, a coordinated approach has been building to utilise multiple international legal mechanisms to hold Russia responsible for its actions. These extend from efforts to hold Russia and Russians accountable for the 2014 downing of flight MH17 over Ukraine, and rejecting assertions of a pre-invasion genocide occurring in Ukraine as possible justification for Russia’s military operations, to war crimes investigations capable of bringing both individual Russian soldiers and Russian President Vladimir Putin to trial. These legal manoeuvres clearly represent a strategy to use international law to hold Russia to account for its actions and operate alongside diplomatic, economic, military and political responses from the West and its partners.
Australia and the Netherlands have been seeking to hold Russia as a state responsible under international law for the MH17 incident.
The downing of MH17 on 17 July 2014 over Ukrainian air space by a Buk missile brought Russian conduct in Ukraine to global attention. The Malaysia Airlines Boeing 777 was en route from Amsterdam to Kuala Lumpur with 298 passengers and crew aboard. All were lost, including 38 Australian citizens and residents. The global diplomatic and legal response at the time was swift. Australia, alongside other partners, spearheaded a Security Council debate, which resulted in adoption of Resolution 2166 (2014), which permitted access to the crash site and paved the way for a criminal investigation. The work of the Dutch lead Joint Investigation Team in 2019 resulted in criminal prosecutions against four persons alleged to be responsible for the crime. Their trial remains ongoing before a Dutch court exercising elements of international criminal jurisdiction.
Separately, Australia and the Netherlands have been seeking to hold Russia as a state responsible under international law for the MH17 incident. Those processes have relied on the 1944 Chicago Convention. After negotiations broke down in October 2020, the two countries jointly announced on 14 March their intention to commence formal legal proceedings against Russia. That this announcement was made just 19 days after the Russian invasion of Ukraine would not have been coincidental.
Ukraine has also been seeking to hold Russia responsible for a series of maritime actions that occurred following the annexation of Crimea. These incidents concerned a 2016 denial of the freedom of navigation to Ukrainian vessels through the Kerch Strait and the Sea of Azov, and the 2018 detention and arrest of Ukrainian sailors and naval vessels. Two cases are before specialised international courts and tribunals focusing on the law of the sea.
New international legal proceedings were also commenced by Ukraine against Russia in the International Court of Justice following the invasion, which began on 24 February. Vladimir Putin’s justification for the Russian “special military operation” as a response to genocide taking place in Ukraine was directly challenged. In a bold and swift legal action, Ukraine sought provisional measures from the International Court asserting there were no factual grounds to assert genocide was being committed against peoples in Ukraine’s eastern Donbass region. The International Court responded promptly by hearing the case on 7 March and issuing a decision on 16 March. The court found 13/2 in favour of Ukraine and ordered provisional measures that Russia immediately halt its military operations. While Russia has clearly ignored those orders, the case remains before the court and a final decision on the merits remains pending following more developed future legal argument.
While the images from across Ukraine may suggest a lawless world, that is not the case. Both international and national law is operating in the background.
There has also been considerable attention given to war crimes in Ukraine and potential war crimes trials against Russians. Multiple national and international initiatives are underway with the immediate focus on investigating alleged war crimes and gathering evidence for prosecutions. Those efforts have increased throughout April, especially following the alleged atrocities in Bucha. They are being undertaken by Ukrainian criminal investigators, international criminal investigators from the International Criminal Court, and other national investigators from as far afield as Australia.
The push for war crimes prosecutions has been gathering significant momentum and has been remarkable. US President Joe Biden’s 16 March claims that Putin was a war criminal, and then on 12 April that Russia was responsible for genocide in Ukraine, significantly galvanised international attention. US political and moral leadership on this issue has been critical and in sharp contrast to the hostility of the Trump administration towards war crimes prosecutors. The International Criminal Court has an unambiguous legal mandate to investigate war crimes, crimes against humanity, and genocide in Ukraine following conferral of jurisdiction by 39 ICC member states on 2 March. Whether those investigations will result in prosecution of Putin will take time. Importantly, the court’s legal capacity to seek out Putin is clear and, under the ICC’s Statute, as a current head of state Putin enjoys no immunity from an arrest warrant.
While the images from across Ukraine may suggest a lawless world, that is not the case. Both international and national law is operating in the background. While international law is incapable of ending the conflict, it will eventually make accountable some of those responsible for an ever expanding list of international law violations, war crimes and atrocities.
