top of page

Demystifying Russia’s violation of International law in the Ongoing Ukrainian Conflict: Part II

-Astha Samanta



The author has already covered the violation of Jus Cogen norms by Russia in the first part of this Article. In the second part of this article, the Author will evaluate the justness of Russia’s actions from the anvil of the Security exception provided under Article 51 of the United Nation’s charter. The Author will also analyze Russian Actions in Ukraine from the point of view of the obligations imposed under the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) 

1.     Misuse of  Article 51 of the UN charter:

Russia has justified its use of force by invoking Article 51 of the UN charter and claiming that a “De-Nazification” of the area is required.  The Donbas region of Ukraine, which consists of the state of Lushank and Donetsk have been declared to be independent by Russia. The separatists groups of this region had declared Donbass to be an independent state in 2014 itself based on a self-rule vote. Russia has accepted the unilateral declaration of independence of these two regions by giving it state recognition in 2022.

Unilateral declaration of independence may be an act permitted under International law as the precedent has already been set through the Kosovo case, wherein the ICJ had stated that international law contains no prohibitions on the unilateral declaration of independence by government of Kosovo from Serbia. However, the extent to which a unilateral state recognition of a disputed area would provide that area the status of a “state” under international law still remains a matter of great debate.  Furthermore, Russian recognition of the Donbass region has been held to be violation of Ukraine’s sovereignty and territorial integrity by the UN.

The author is of the opinion that the attack on Ukraine by Russia under the claims of “De-Nazification” constitutes a misuse of Article 51 of the UN charter. Article 51 of the UN charter states that-

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security…”.

The ICJ in the Nicaragua case has explained the instances when states can invoke article 51 of the charter. When there is a “grave form of use of force” only then can this article be invoked for purposes of self-defense. The court further clarified that an armed attack constitutes the use of most grave form of violence. Thus the implication that follows is that an insufficient use of force i.e. insufficient armed attack cannot be a ground for the use of defense of article 51. Therefore, if we try to understand the implications of Article 51, it provides for a collective and individual self-defense in case of a grave instance of an armed attack.

However there have been no instances of armed attack on Russia from any part of Ukraine or any of the NATO member state. Neither has Ukraine called for any help for self defense from Russia to “De-Nazify” its territory. Furthermore, the status of Donbass as an independent state still remains under question since state recognition is not enough a territory to be considered as a state in the international arena. Even if in arguendo, the status of Donbass as an independent state is not questioned, still the Russian claims of Nazification of Ukrainian territory remain a matter of constant debate in the international arena.

Therefore Russia’s justification for invocation of Article 51 of the UN charter seems unjustified. In reality it is Ukraine who can take the defense of article 51 of the Charter because of unwarranted aggressive use of force on the Ukrainian territory by the Russian forces.

2.     Violation of the genocide convention:

There are allegations of Crime of genocide being committed by the Russian soldiers against the Ukrainians. The Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) is an international legal document that first defined the crime of genocide. In response to the atrocities done during World War II, the international community vowed to "never again" condone these atrocities by adopting the Genocide Convention, on December 9, 1948. With its adoption, international criminal law and human rights as we know them today took a significant stride forward. Importantly, the Convention imposes obligation on the State Parties to take measures to prevent and to punish the crime of genocide, including by enacting relevant legislation and punishing perpetrators, “whether they are constitutionally responsible rulers, public officials or private individuals.”

All States are bound by these duties, in addition to the prohibition against committing genocide, whether or not they have ratified the Genocide Convention. These obligations form the jus cogens norms of international customary law.

Article II of the genocide convention is significant in this regard as it illustrates the various grounds which constitute genocide;

“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.”

This provision in general is significant given the Russian Federation’s actions in the ongoing conflict. According to multiple reports, thousands of ukrainian children had been moved unlawfully from the occupied territory of Ukraine. Russia has been accused of deporting Ukrainian children in Russia to be adopted by Russian families. Therefore russian actions stand in blatant violation of the obligations imposed under the Genocide Convention. Recently, Ukraine has approached the International Court of Justice alleging blatant violations of the Genocide Convention by the Russian Federation. The matter is currently pending before the ICJ.

CONCLUSION

The International Criminal Court has recently issued  arrest warrants against the leaders of Russian Federation for forceful displacement of Ukrainian children. The arrest warrant empowers the signatory states of ICC to arrest the offender whenever he travels to the territory to any of the signatory states to ICC. Since no state would want to develop hostilities with Russia directly by arresting him chances are there that countries especially ICC signatories would find it less appealing to host international summits or have strong diplomatic tie with Russia. The arrest warrants issued by the ICJ indicate a step forward in restoring faith in a rule based international law regime. However, the efficacy of the arrest warrant remains to be seen.