Russia’s continued disregard for international law

Despite widespread global condemnation, including a resolution adopted by 141 countries at the United Nations General Assembly (UNGA) in March 2022 calling for Russia to withdraw from Ukraine immediately and unconditionally, Moscow continues its illegal military offensive against Kyiv, UNGA resolutions are not binding, but International Court of Justice (ICJ) decisions are. On Ukraine’s application, the ICJ, in a provisional measure, again in March, ordered Russia to immediately suspend its military operations in Ukraine. Russia has not complied with this decision. Meanwhile, Russian troops in Ukraine have been accused of engaging in war crimes under international humanitarian law. Ukraine is not only fighting a valiant military battle to defend its sovereignty but is using every possible lever under international law against Russia. It has turned to international courts such as the ICJ, the International Criminal Court and the European Court of Human Rights to put Russia in the dock. But there is nothing to stop the revisionist and imperialist designs of Russian President Vladimir Putin. Mr. Putin is ready to go to great lengths to revive a Russian empire and achieve the greatness of a mythical civilization, even if it means striking the foundations of the post-war international legal system that espouses sovereignty and non-interventionism. As it is firmly built on core values.

Illegal possession

The latest item added to the long Russian list of bare-faced violations of international law is the recent merger of Donetsk, Luhansk, Zaporizhzhya and Kherson – four regions that are an integral part of Ukraine. Russia claims that referendums have taken place in these regions and have decided to join Russia. UN Secretary-General Antonio Guterres has rightly said that so-called “referendums” in Ukraine were held in areas that are under Russian occupation. Thus, it is highly unlikely that the so-called referendum is a genuine expression of the popular will of the people.

To somehow prove the legitimacy of his actions to the Russian people, Mr. Putin often invokes the UN Charter. Just before invading Ukraine, he referred to Article 51 of the United Nations Charter (which provides for self-defense against armed attack). Mr. Putin was wrong because Russia did not face any aggression from Ukraine. In his recent speech announcing illegal mergers, he referred to Article 1 of the Charter. The reference was specifically to the right of the people of these regions to self-determination. Mr. Putin is wrong again. The framework of the right to self-determination under international law is a matter of debate. This right, also enshrined in Article 1 of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, provides that a group of people may freely determine their political status. But this right should be read with Article 2 of the United Nations Charter which lists the principle of non-interference as one of the seven core principles of the United Nations. Furthermore, since the drafting of the United Nations Charter, the principle of self-determination has been understood in terms of colonialism rather than the merger of new territories under the pretext of self-determination.

rules on business

Under international law, Russia’s control of the four Ukrainian territories prior to the so-called referendum is known as ‘combatant occupation’. The rules of belligerent occupation have been interpreted under the Hague Convention of 1899 – the first treaty that laid down the laws of war. Article 43 of the Convention states that if “the right of lawful power over territory” “has passed into the hands of the occupier, the latter shall take all steps in his power to re-establish and ensure public order and security”. “. Furthermore, in doing so, the occupier shall “respect, unless completely prevented”, the domestic laws of the country to which he occupied.

Russia’s unilateral action to annex the four regions of Ukraine is a gross violation of Article 43 of the Hague Convention. The article clearly states that being occupied by Russia has only ‘rights’ and not ‘sovereignty’ over these areas. Furthermore, any change in this status, i.e. change from ‘authority’ to ‘sovereignty’ can only take place with the consent of Ukraine. In addition, Russia should have retained the existing Ukrainian laws of these regions. But Russia has made these territories part of its territory, which means that Russian laws will now apply there.

Ironically, the Hague conferences were led by Russian Tsar Nicholas II. Despite all the criticism from the West, Mr. Putin is not even following the law that was led by his own countrymen.

nuclear hoax

In a recent speech, the Russian President hinted at the use of nuclear weapons in the ongoing war, in a highly irresponsible and provocative manner. As a result, the threat of a catastrophic nuclear war remains in the background. Neither Russia nor Ukraine has signed the Treaty on the Prohibition of Nuclear Weapons. But here again, the UN Charter is helpful in understanding the legitimacy of these nuclear threats. The Charter provides for the right of individual and collective self-defense, which means that if Russia conducts a nuclear attack, not only Ukraine but also its allies can retaliate against Russia in collective self-defense. In addition, the Charter empowers the Security Council to act in case of threat of force. Mr. Putin’s statement threatens nuclear war, that is, the use of force in the terms of the charter. As such, nothing prevents the UN Security Council from initiating action against Russia under Chapter VII of the Charter. Of course, this is not going to materialize, mainly because of Russia’s veto power as a member of the UN Security Council.

Finally, respect for hyper-realistic foreign policy would point to the irrelevance of international law as it failed to stop Russia. However, the defiance of international law by an autocrat does not diminish its importance. After all, there are many examples of totalitarian regimes violating the laws of their own country in contemporary times. But this does not make domestic law irrelevant. On the contrary, it underscores the need to emphasize its importance to everyone. Similarly, the need to clarify the norms of international law is greatest in the event of its gross violation. We must not end up on the wrong side of history.

Prabhas Ranjan Jindal is Professor and Vice Dean of the Global Law School. Aman Kumar is an assistant professor at IFIM Law School