[Report] The Russian invasion of Ukraine: International legal implicationsPublished 28 March 2022
By Florent Beurret and James Sexton
On Tuesday 8 March 2022, the T.M.C. Asser Instituut organised a live panel discussion on the international legal implications of Russia’s invasion of Ukraine. The first group of speakers focused on the lead-up to the invasion, the intensifying military concerns and the role of international humanitarian law (IHL) in the conflict. The second group of speakers addressed the accountability of individuals accused of committing international crimes in Ukraine as well as the impact of the conflict on civilians. See the full list of speakers below.
Rising animosity through the weaponisation of memory
Dr. Ulad Belavusau began the first group discussion by establishing the context of the rising animosity shown by Russia towards Ukraine in previous years, including an assessment of Russian President Putin’s justifications for fully invading Ukraine in February 2022. Dr. Belavusau is an expert on memory laws: those laws that solidify certain narratives of historical events into legal ‘truths’, and currently focuses his research on Central and Eastern Europe (CEE) states. Dr. Belavusau clarified the difference between self-inculpatory memory laws, such as utilised by states in continental Europe to voluntarily accept guilt for their part in the Holocaust, and self-exculpatory memory laws, more common in CEE. A famous example of the latter is the 2018 Polish memory lawwhich defines all Polish people as victims of Nazi Germany and exculpates the guilt of any Polish people involved in the killing of Jewish people during WWII.
He explained that states in CEE have increasingly been involved in ‘memory wars’, meaning that states, by enacting memory laws prescribing guilt and responsibility to neighbouring states in the context of contestation of historical paradigms, are instrumentalising memory laws and policies to install a form of ontological security. He argued that Russia and Ukraine have been involved in such a memory war for some time. Russia, for example, attempted to pass a self-exculpatory legislation during the Yeltsin period, and later has enacted such a law in the 2010s during Putin’s rule in the aftermath of the annexation of Crimea, criminalising the denial of the positive role of the Red Army during the ‘Great Patriotic War’, which is how the Second World War (WWII) is officially termed in Russia. Ukraine has responded with 2015 decommunisation laws, for example prohibiting the white washing of Ukraine’s communist regime and prescribing a Ukrainian narrative of WWII. Especially after the 2014 invasion of Crimea and the Donbas area, the intensity of the memory war between Ukraine and Russia has increased. Dr. Belavusau also stressed the complicated memory wars taking place within Belarus, which is also implicated in the current conflict.
The value of peace, countermeasures and arms control
Prof. Thilo Marauhn began his speech with three overarching remarks. First, that while it is understandable that everyone is emotional during these times, it is essential for international lawyers to stay rational. Second, a belief in law and justice means that we must be careful as to what the law actually says about the conflict, even regarding the legality of states supporting Ukraine. Third, we need to restart discussing the value of peace, which seems to have lost a sense of importance.
Prof. Marauhn stressed that under jus ad bellum there is agreement that Ukraine is the victim of an armed attack and therefore has the right to self-defence. However, to fill this statement with life, it must be backed up by rationality. For example, it must be questioned how various forms of assistance to Ukraine, like finances, weapons and volunteers who are willing to fight, interact with the prohibition of intervention, the prohibition on the use of force and the right to (collective) self-defence. He further questioned whether the West has used the full array of possible (peaceful) countermeasures in previous conflicts in which Russia was involved, notably in Georgia and Crimea. Prof. Marauhn further argued that we need a common legal understanding of the rules on the prohibition of the threat and use of force for both authoritarian and democratic states alike; there needs to be a formal interpretation of certain rules that can result in peace, because without peace we cannot even talk about topics like human rights. On the legality of current countermeasures and sanctions by the West against Russia, it was stressed that if we want to defend values like the rule of law within the international legal order it is important to focus on the legality of every state’s actions. Finally, Prof. Marauhn stressed that arms control law is a way to install some rationality between opposing parties with different values. He explained that there were a lot of talks on arms control law during the 1980s but these died out when the West ‘won’ the Cold War. If we had adopted an international agreement about (conventional) arms control in Europe in the form of a treaty, perhaps building on the precedent of the Treaty on Conventional Forces in Europe, then we would have had better legal arguments to oppose Russia when it was building up its forces near the Ukrainian borders.
Despite unlawful use of force, international humanitarian law remains important
Prof. Marten Zwanenburg started his speech explaining that that while war is terrible, IHL remains important in limiting human suffering as much as possible. Prof. Zwanenburg continued to explain how the conflict in Ukraine should be classified and therefore which rules of IHL apply to them. He then discussed three different incidents where an analysis of whether IHL has been violated is warranted. The first example was on the many reports that Russia is shelling civilian objects like schools, hospitals and residential areas. If we can conclude that these attacks on civilian targets were deliberate, then this is a clear violation of the IHL rule of distinction, which would then also amount to a war crime. If these attacks were not deliberate but stem from indiscriminate weapons, then this would be an indiscriminate attack and a violation of IHL as well. The second example focused on whether attacks by Russia on nuclear reactors constituted an IHL violation. To this question, he responded that we need to look at the law objectively to see whether it is a violation, and that the answer most likely depends on the facts. If the reactor was used for civilian purposes only, then an attack would violate the IHL rule of distinction. However, if the reactor was providing energy for the Ukraine armed forces, then it becomes a military object that can be lawfully targeted under IHL. Nonetheless, special rules exist on nuclear reactors when they become military objects. It is therefore necessary to determine what Russia reasonably could expect the damage to be to determine whether this constitutes an IHL violation. The third and last example regarded an alleged order to kill all Russian soldiers responsible for the bombardment of population centres in Ukraine. The order to give ‘no quarter’, in military terms, is a clear violation of IHL, as is the killing of Russian soldiers after they surrender, because they enjoy prisoner of war (POW) status under the Geneva Conventions. This final example was chosen to demonstrate that the law applies to both sides of this conflict.
Complicity of the Russian people and the West
Dr. Sergey Vasiliev began the second group discussion by sharing the sense of discomfort he felt when invited to discuss legal issues raised by the conflict from a position of privilege and safety in the beautiful city of The Hague, while a humanitarian catastrophe is unfolding, millions of people are displaced and thousands are losing their lives in Ukraine. Indeed, talking about the war only in legal terms, as international lawyers tend to do, seems akin to an avoidance strategy. The legal niceties should not distract us from the sheer horror of events unfolding in Ukraine. We must make sure to give as much room as possible to the voices and perspectives of people who are witnessing these events on the ground, in particular the international law experts from Ukraine, although for many of them speaking at such events is hardly a priority now when their peaceful cities are being shelled and they must save themselves and their families. Dr. Vasiliev then raised the issue of the special responsibility of Russian citizens opposed to the war to speak out now. He linked it to the question of the citizens’ complicity in Putin’s war. The Russian society will need to take a very critical look into the mirror after all this is over. There will have to be a comprehensive reckoning and transitional justice process involving large segments of the Russian society. It is important to remember that after the Soviet Union collapsed, essentially the same categories of people who were responsible for political repressions and state violence in the authoritarian system stayed on and were able to retake power when the time came: there has never been a proper accountability process in the country, which led to this latest coil of revanchism, nationalism and imperialism. Dr. Vasiliev also touched upon the complicity of the West, since, according to him, it enabled Putin to steadily destroy the rule of law, democracy, and free speech in Russia over the past two decades. The Western partners watched Putin eliminate dissidents and political opponents in Russia, violate the right of citizens to free speech and to assembly, annex territories and violate human rights on a massive scale – while still shaking his hand and accepting Russian money. According to Dr. Vasiliev, capitalist interests have tragically prevailed over moral and legal principles of human rights and dignity, rule of law, and liberal democracy. It is too late for sanctions when tanks are surrounding Kyiv.
What is happening in Ukraine is a catastrophe of historic proportions. Dr. Vasiliev questioned what an international lawyer can do in these circumstances. He listed multiple examples of what Ukrainian international lawyers in particular had already done – they had done incredible and inspiring work under most difficult circumstances. For example, Ukraine had already brought inter-state cases to the ECtHR and the ICJ and obtained rulings on interim/provisional measures. Regarding the case before the International Court of Justice (ICJ), Dr. Vasiliev praised Ukraine’s creative and strong legal argument underlying its request for the indication provisional measures, namely that Russia is abusing the duty to prevent and punish genocide under Article 1 of the Genocide Convention, which does not authorize use of force, and violating Ukraine’s right not to be confronted with false accusations of genocide and with a military attack under that pretext. He compared Russia’s absence at the oral hearings on the request for the indication of provisional measures before the ICJ with the US’ absence in the merits phase of the Nicaragua case (after the Court ruled it had jurisdiction). He had thought of two possible reasons for Russia’s non-appearance: Russia could not mobilise its team of legal experts on such a short notice or, alternatively, Russia’s disdain for international law and its knowledge it did not have a strong case at the ICJ. It is clear, however, that there is a dispute among the parties, and that the ICJ therefore has prima facie jurisdiction, Ukraine has a plausible right flowing from the Convention, and that there’s a risk of irreparable harm that the requested provisional measures are meant to preclude. According to Dr. Vasiliev, we must expect the ICJ to issue an order indicating provisional measures as requested by Ukraine within some two-three weeks.
International law is not dead
Victoria Kerr LL.M. began by explaining her involvement in the MATRA-Ukraine Project, a joint project of the T.M.C. Asser Instituut and Global Rights Compliance (GRC) established in 2020 which aims to strengthen Ukraine’s capacity to investigate and prosecute international crimes. Ms. Kerr mostly focused on the individual criminal responsibility of perpetrators in her work.
Ms. Kerr highlighted that many have criticised international legal measures for having little effect in alleviating the current situation, with some people even “sending their condolences” to the current international legal order. However, it is important to shift the narrative towards how international law can be enforced in situations like this. She pointed to the recently initiated investigation into Ukraine by the ICC’s Office of the Prosecutor and calls by high-profile lawyers and politicians, (with support from the Ukrainian Minister of Foreign Affairs) to set up a special tribunal for trying high-level perpetrators for the crime of aggression. However, since the majority of lower-level perpetrators of international crimes will most likely not be prosecuted in international tribunals or courts, they can be tried domestically or through universal jurisdiction. She gave the example of Poland commencing an investigation concerning crimes committed on the territory of Ukraine, including the ‘initiation of war of aggression’ (Article 117 Polish Criminal Code), under the principle of universal jurisdiction. Ukraine has also adopted Bill 2689 establishing provisions on international crimes in the Criminal Code of Ukraine. However, this Bill still needs presidential approval to enter into force.
Ms. Kerr stressed that because some of these accountability mechanisms may take a while to establish, it is important to focus on the documentation and preservation of evidence of potential violations. She pointed out that some evidence will be digital and that open-source investigators are specialised at checking the validity of this information. She concluded that we must consider what Ukraine wants from the international community before determining in which way international law can be enforced.
Ukrainian lawyer’s perspective on the war
Iryna Hnasevych talked about her experience as a Ukrainian and a migration law specialist. Ms. Hnasevych alerted the audience to the fact that there are currently around 1.7 million refugees that have fled from Ukraine to Poland. She praised Poland for being so supportive, even for undocumented refugees. She also welcomed the EU’s implementing decision to give temporary protection to Ukrainians, while having some comments on whether third state nationals fleeing from Ukraine would also fall under this protection. She also mentioned that because men aged 18-60 are still not allowed to leave the country, refugees mostly consist of women and children. It is therefore important to have proper procedures in place to protect undocumented children. Ms. Hnasevych furthermore stated that all perpetrators of international crimes in Ukraine need to be brought to justice, including President Putin. She expressed her thankfulness to the Ukrainian lawyers who have, under extreme circumstances, managed to bring cases in front of the ICJ and the European Court of Human Rights. She also echoed Ms. Kerr’s point about the importance of proper documentation of international crimes.
After the presentations, there was time for Q&A, which led to several questions from the audience, including a question on specific actions that the West could have taken to avoid the current situation. Prof. Thilo Marauhn answered that in the West, a trend exists to not intervene too sharply for our own economic benefit. For him, when states violate international law and human rights, it is not sufficient to just make a statement condemning those states. If you believe in the object and purpose of countermeasures, you need to use them even if they can hurt your own economy. The longer we wait with meaningful countermeasures, the more likely it is that only military options are left. He concluded that the escalation of countermeasures is meant to prevent the worst-case scenario and to bring the other side to the table.
One question asked whether states sending weapons to Ukraine are breaching the law of neutrality. Prof. Marten Zwanenburg responded that the basic principle of the law of neutrality is that states need to avoid becoming parties to the conflict. The traditional position is that neutral states cannot assist in any way. However, he stated that multiple states have presented arguments as to why providing Ukraine with weapons is not a violation of the law of neutrality. If there is a clear aggressor and victim of the aggression, Russia and Ukraine respectively, then certain states argue that they can adopt a position of ‘qualified’ neutrality. This means that these states can assist Ukraine. An argument can also be based on collective self-defense, which would allow other States to use force, and thus for sure also supply weapons.
Another question was asked regarding the alleged preferential treatment for setting up a special tribunal for the conflict in Ukraine, since many other conflicts have not seen the establishment of special tribunals. Victoria Kerr answered that while debates on selectivity with regards to setting up special tribunals are certainly valid, it is not a reason in itself to completely dismiss the idea for this conflict. Prof. Marten Zwanenburg added that it is important, however, to think about what happens if a special tribunal fails in what it wants to achieve.
Lastly, a question was asked on whether the Western sanctions against Russia meant to put educational and cultural cooperation on halt were a good idea. Dr. Vasiliev answered that this depended on whom such sanctions were meant to target and whom they ultimately affected most. Sanctions limiting internationally-minded students and scholars’ access to education in the universities in Europe or their ability to participate in joint research projects are akin to a collective punishment and utterly counterproductive, among others because it will be up to these young people to restore the rule of law, civil society and democracy in Russia – and they are being pushed away.
Dr. Ulad Belavusau
Senior researcher in European Law at the T.M.C. Asser Instituut specialised in memory laws.
Prof. Thilo Marauhn
Special Chair Arms Control Law at the University of Amsterdam and researcher at T.M.C. Asser Instituut.
Prof. Marten Zwanenburg
Professor in Military Law at University of Amsterdam and the Netherlands Defence Academy
Dr. Sergey Vasiliev
Associate professor in International Criminal Law at the University of Amsterdam.
Victoria Kerr LL.M.
Junior researcher at the T.M.C. Asser Instituut and leading implementer of the MATRA-Ukraine Project
Ukrainian lawyer for the UNHCR project at Halina Nieć Legal Aid Center.
Managing Director of The Hague Humanity Hub
Prof. Janne Nijman
Chairperson of the Executive Board and Academic Director of the T.M.C. Asser Instituut
Dr. Christophe Paulussen
Senior Researcher at the T.M.C. Asser Instituut
Dr. Carl Emilio Lewis (Researcher at the T.M.C. Asser Instituut)