Milena Sterio, Charles R. Emrick Jr.-Calfee Halter & Griswold Professor of Law at Cleveland State University in Cleveland, Ohio discusses alleged war crimes by Russia in Ukraine…
On February 24, 2022, Russia initiated a full-scale invasion of Ukraine. Since then, Russian forces have attacked different parts of Ukraine using both ground troops as well as air strikes. So far, tens of thousands of Ukrainians have died as a result of Russian attacks. By so blatantly attacking Ukraine, another sovereign country, Russia has violated international law’s basic prohibition on the use of force, which has been the underlying tenet of the post-World War II international legal order. Moreover, the Russian invasion of Ukraine has been characterized by various international humanitarian law violations, such as the intentional targeting of civilian objectives, torture, rape and sexual violence. Russian actions may have given rise to several atrocity crimes, such as war crimes, crimes against humanity, genocide, and aggression. Russian leaders and soldiers, responsible for the commission of such crimes, should be held accountable and be prosecuted before a domestic, hybrid, or international tribunal.
Illegal Use of Force
Article 2(4) of the United Nations Charter prohibits states from using force against the territorial integrity or political independence of other states. The United Nations Charter was negotiated after World War II, with the goal of adopting international laws which would prevent another global war by limiting states’ ability to use force against each other. Although wars have been fought and states have used force in violation of Article 2(4) several times since then, instances where states have blatantly invaded other states have remained rare. Russia’s use of force against Ukraine, committed with the end goal of invading and annexing Ukraine and “Russifying” Ukrainians, represents a rare instance of a blatant violation of the Charter’s fundamental rules. To the extent that the Charter reflects our legal understanding of the post-World War II world order, Russian actions can be understood as a direct threat to the entire community of states.
Violations of International Humanitarian Law
Over the past three months, Russian forces have carried out multiple ground and aerial attacks. Several attacks have been launched against civilian objectives, such as the March 9 assault on a Mariupol maternity hospital, numerous other attacks on medical facilities, and most recently the Amstor shopping Center on June 27 in Kremenchuk. International humanitarian law, through both treaties as well as customary law, prohibits states from internationally targeting civilian objectives.
The so-called “principle of distinction,” a tenet of international humanitarian law, was first set forth in the St. Petersburg Declaration, indirectly reaffirmed in the Hague Regulations, and clearly codified in Articles 48, 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions, which provide that Parties to an armed conflict must “at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” It is abundantly clear that Russian leaders have deliberately ordered attacks against non-military objectives, such as hospitals, medical facilities, and shopping centers.
Another relevant international humanitarian law principle which Russian forces have likely violated is the principle of proportionality, which prohibits attacks expected to cause excessive incidental civilian harm in relation to the concrete military advantage anticipated. Russia has also violated the principle of precaution, which dictates that during the conduct of military operations, constant care must be taken to spare the civilian population, as well as civilian objectives. In addition, members of the Russian military have mistreated and tortured civilians, as well as carried out rapes and other forms of sexual violence; these acts constitute additional blatant violations of international humanitarian law.
Serious violations of international humanitarian laws constitute war crimes. In fact, international humanitarian law holds individuals responsible for war crimes which they commit themselves, or which they order to be committed. States have the right to investigate persons responsible for the commission of war crimes in their national courts, under the principle of universal jurisdiction. Moreover, international humanitarian law is complemented by international criminal law, which sets out different modes of individual criminal responsibility for the commission of war crimes. Acts which constitute war crimes in all conflicts include those mentioned above – deliberately targeting civilians who are not directly taking part in hostilities, mistreating and torturing civilians, and rape and other forms of sexual violence. Therefore, it is clear that Russian forces have committed war crimes in Ukraine.
The Commission of Other Atrocity Crimes
In addition to war crimes, Russian leaders and forces have committed other atrocity crimes in Ukraine, including aggression, crimes against humanity, and possibly genocide. As mentioned above, Russia’s invasion of Ukraine is a direct violation of international law’s basic prohibition on the use of force. Moreover, Russia’s attack against and invasion of Ukraine gives rise to the crime of aggression, which is defined by the International Criminal Court as the use of armed force by a State against the sovereignty, integrity or independence of another State.
Although negotiations among states within the ICC’s treaty framework have been complex and have resulted in an aggression regime which allows states to opt out, it may be argued that this definition of aggression has been accepted by the majority of states and that it reflects an emerging norm of customary law binding on all states. Russian actions in Ukraine clearly satisfy the legal definition of aggression; Russian leaders should face accountability for these acts.
In addition to aggression, Russian actions in Ukraine likely have given rise to crimes against humanity: acts committed as part of a widespread or systematic attack directed at a civilian population, such as murder, torture and rape. Russian forces have carried out a deliberate and systematic series of attacks against Ukrainian civilians, as well as acts of murder, torture, and rape. Although crimes against humanity have not been codified in a multilateral treaty as of writing, the commission of such crimes has been prosecuted in various international criminal tribunals as well as at the ICC. Russian leaders should incur criminal responsibility for the ordering and commissioning of crimes against humanity in Ukraine.
Finally, Russian leaders appear to be acting with genocidal intent to “Russify” Ukraine by denying the existence of Ukrainian identity and ethnicity. Genocide is defined as the intentional destruction of a national, ethnic, religious or racial group. It has been codified since World War II in the Genocide Convention as well as in the statutes of international and hybrid criminal tribunals, including the ICC. Russian officials have deliberately depicted Ukrainians as subhuman, using terms such as “scum,” “filth,” “bestial,” or “subordinate.” Russian leaders have also portrayed Ukraine as a Nazi regime, in order to justify their pursuit of eliminating and destroying Ukraine.
The Russian pattern of atrocities committed in Ukraine, including mass killings, the shelling of shelters and evacuation routes, the indiscriminate bombardment of residential areas, and a pattern of rape and sexual violence all point toward a genocidal intent. Finally, forcible transfer of more than a million people to Russia, including 180,000 children, and reports of planned reforms in Russian legislation to accelerate adoption procedures for children from the Donbas region, as well as forcing abducted Ukrainian children to take Russian classes, further point to a genocidal intent to destroy the Ukrainian ethnicity. According to a recently published expert report, Russia is guilty of inciting genocide and of having the intent to commit genocide in Ukraine. United States President, Joe Biden, has already labeled Russian actions in Ukraine as genocide and other state leaders have followed. Russian leaders should face serious accountability for their genocidal plan and the ordering of genocidal acts against Ukraine.
The Need for Accountability
Russian leaders, as well as members of the Russian military who have ordered the commission of atrocities or who have committed atrocities themselves should face accountability. Various accountability mechanisms where such prosecutions can take place either already exist or have been seriously debated in the international community.
First, the ICC already has jurisdiction in Ukraine over genocide, crimes against humanity and war crimes in light of Ukraine’s declarations accepting the Court’s jurisdiction over these crimes, and ICC Prosecutor, Karim Khan, has deployed a team of investigators and prosecutors. Regrettably, the ICC does not have jurisdiction over the crime of aggression as neither Russia nor Ukraine are members of the ICC. However, Russian leaders may face accountability for crimes other than aggression at the ICC.
In order to prosecute Russian leaders for aggression, experts have been advocating toward the establishment of an ad hoc tribunal for aggression. Such a tribunal could be established either through an agreement among several states, or through an agreement between the United Nations and Ukraine. In addition, it is possible to prosecute some Russian perpetrators of atrocities in the national courts of third-party countries, under the principle of universal jurisdiction.
Finally, Ukraine has already prosecuted one Russian soldier and it is possible that Ukrainian courts will continue to prosecute others. Some experts have started to advocate in favor of creating a special war crimes chamber within the Ukrainian court system, which would specialize in the prosecution of those who commit war crimes and other atrocities.
Considering the gravity and systematic nature of the crimes committed in Ukraine, it is crucial that Russian political and military leaders and soldiers who committed atrocities face accountability, whether at the international level, or through a hybrid or local prosecutorial mechanism.
Professor Sterio earned her law degree, magna cum laude, from Cornell Law School in 2002. At Cornell, she was Order of the Coif, general editor of the Cornell International Law Journal and a member of Phi Beta Kappa. In 2003, she earned a master’s degree, cum laude, in Private International Law from the University Paris I-Pantheon-Sorbonne; in 2002, she earned a Maitrise en droit franco-americain cum laude, also from the Sorbonne. Her undergraduate degree, summa cum laude, in Political Science and French Literature is from Rutgers College, New Brunswick, New Jersey. Before joining the Cleveland-Marshall faculty, she was an associate in the New York City firm of Cleary, Gottlieb, Steen & Hamilton and an Adjunct Law Professor at Cornell, where she taught in the International War Crimes Clinic.
Suggested citation: Milena Sterio, The Russian Invasion of Ukraine: Violations of International Law, JURIST – Academic Commentary, July 12, 2022, https://www.jurist.org/commentary/2022/07/Milena-Sterio-Russia-war-crimes-Ukraine/.
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