International Justice

CJ354 Endicott College

Russia’s Invasion of Ukraine: A Possible Crime of Aggression?

What’s the Situation in Ukraine right now?

Right as the young and fresh new Ukrainian government was scrambling to get themselves together, Russia moved their military into Crimea this past weekend. It was a rapid, unexpected, and non-violent military takeover that caught not just Ukraine but the entire international community by surprise. The Ukrainian government has not authorized military action against the Russians in fear of starting a bloody war.

Putin’s intentions in Ukraine aren’t entirely clear. More modest speculations include wanting to protect the Russians in Crimea from anti-Russian violence , wanting to stabilize a potentially volatile political situation right along Russia’s border. More bold speculation includes Putin wanting to potentially take over Crimea or even all of Ukraine and annex it into Russia. Other former Soviet states have expressed concern that Russia’s aggression might extend to their territories as well. Estonia’s president called for stronger defense in fear of further Russian aggression.

Is This an Act of Aggression?

There has been significant international outcry against Russia’s actions, centered largely around the illegality of such military action under international law. Acts of aggression are defined by amendment of the Rome Statute as the use of armed force carried out by one state against another state without the justification of self-defense or through UN Sanction. By this definition, Russia’s actions can definitely be construed as a crime of aggression.

Can/Will/Should the ICC Step In?

Although the ICC is technically a retroactive court, it has demonstrated since its inception that it has a clear interest in intervention and prevention.  It would not be entirely inconceivable for the ICC to want to prevent mass violence in this case by stepping in under the umbrella of crimes of aggression.

Whether the ICC can is another question entirely, and the answer is a pretty resolute no. Russia and Ukraine are both not party to the Rome Statute, so the prosecutor cannot initiate an investigation. The UN Security Council referral option is out, given that Russia would veto any action on that front. One possible option, should Ukraine really want the intervention of the ICC, is for Ukraine to pull the stunt that the Cote d’Ivoire pulled in 2011, where they invited the ICC to open an investigation and accepted the jurisdiction of the court without being a member state of the Rome treaty. 

But the chances of that occurring are slim to none, particularly in a case where there have been no deaths or mass violence on Russia’s part. The crime of aggression, although clearly defined in the ICC’s jurisdiction, has never actually been acted upon. A good precedent would be the war between Russia and Georgia in 2008, which faced limited international retribution for its potential violation of aggression laws. Even if military action breaks out in Crimea, consequences for aggression are unlikely.

If not the ICC, then Who?

The United Nations is the most obvious international player with an interest in preventing a potential war, but is severely handicapped by Russia’s position on the Security Council. Some articles have speculated that NATO will play one of the biggest roles in standing up to Russia. Although Ukraine is not a part of NATO, NATO has interests in the surrounding Baltic states and Poland, all of which are threatened by Russia’s expansion into Ukraine. The European Court of Human Rights has also been mentioned, although what role it could or would play appears to be ambiguous.  

Without any international regulatory institutions directly involved, it might come down to political and economic pressure to convince Russia to not advance. But that poses its own problems–Russia’s economy is largely dependent on the exportation of natural resources, and sanctions on resources such as gas would severely impact European countries like Germany and France, for whom Russia is the biggest supplier.

Given the rapid developments over the past few days, there is no telling where the situation will go in the next few weeks, and who will end up being pulled into this potential crisis in Eurasia.

 

Sources:

http://www.politico.com/story/2014/03/russia-ukraine-sanctions-104159.html

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/03/02/international-law-and-institutions-look-pretty-weak-now-but-they-will-matter-a-lot-down-the-road/

http://www.washingtonpost.com/blogs/monkey-cage/wp/2014/03/02/how-putins-worldview-may-be-shaping-his-response-in-crimea/

http://www.theatlantic.com/international/archive/2014/03/russias-seizure-of-crimea-is-making-former-soviet-states-nervous/284156/

http://www.theguardian.com/world/2014/mar/02/ukraine-what-will-happen-crimea-europe-west

http://www.iccnow.org/?mod=aggression

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4 responses to “Russia’s Invasion of Ukraine: A Possible Crime of Aggression?

  1. cekendall March 3, 2014 at 12:39 pm

    Russia’s invasion of Crimea has been met with international outrage and accusations of violations of international law. President Obama “accused Russia on Saturday of a ‘breach of international law’ and condemned the country’s military intervention, calling it a ‘clear violation’ of Ukrainian sovereignty” (NYTimes: Kremlin Deploys Military in Ukraine, Prompting Portest by U.S.), and British foreign secretary (and thematically named) William Hague called for an international diplomatic response to the crisis, saying “The world cannot just allow this to happen. The world cannot say it’s O.K. in effect to violate the sovereignty of another nation in this way” (NYTimes: World Leaders Warn Kremlin as Ukraine Standoff Continues). As Tracy outlines, Russia’s actions so far clearly constitute an illegal act of aggression, an act that is particularly egregious considering the 1994 Budapest Memorandum signed by “the then-rulers of the USA, UK, Russia and Ukraine [that] promises to uphold the territorial integrity of Ukraine, in return for Ukraine giving up its nuclear weapons” (Telegraph: Ukraine pleads for Britain and US to come to its rescue as Russia accused of invasion).

    Yet as Tracy points out in her post, forming any kind of international response will be difficult. Without the possibility of an ICC intervention and with the challenges associated with a military response from NATO or economic sanctions, all that’s really left is strong international diplomatic pressure. “Western countries…have suspended preparations for the scheduled meeting of the G-8 in Sochi, Russia, as part of their response to Russia’s move on Crimea” (NYTimes: World Leaders…), and they will likely attempt to use the success of this meeting as leverage to persuade Russia to withdraw from the Crimea. There has not been any violence yet in Crimea, although the situation between the Russian and Ukrainian militaries seems somewhat volatile. Given Russia’s history of accompanying its military actions with human rights atrocities, for example in the Caucasus, the most important thing the international community can do is make it clear to Russia that any human rights violations will not be tolerated. In a gesture eerily reminiscent of the war in Chechnya, the Russian troops in Crimea have been “stripped of identifying insignia” and wear “green camouflage uniforms with no identifying marks” (NYTimes: Kremlin…). Hopefully this anonymity will not give these troops a dangerous sense of impunity.

    http://www.nytimes.com/2014/03/02/world/europe/ukraine.html?hp
    http://www.nytimes.com/2014/03/04/world/europe/ukraine.html?hp&_r=0
    http://www.telegraph.co.uk/news/worldnews/europe/ukraine/10667111/Ukraine-pleads-for-Britain-and-US-to-come-to-its-rescue-as-Russia-accused-of-invasion.html

  2. kcarp05 March 4, 2014 at 3:58 pm

    Today in his American Grand Strategy class, Professor Mearsheimer gave an interesting lecture on the crisis in Ukraine that I thought was worth mentioning (I’m sure many of you heard it as well).

    In his lecture, I found the causes he laid out quite interesting and a little different from the current articles and news stories on the crisis. Mearsheimer said there were two causes that have led to the current situation (aka the threat of Russia intervening with military force in Ukraine).

    Firstly, back when the Soviet Union broke up, four countries were left with nuclear weapons: Ukraine, Russia, Kazakhstan, and Belarus. However, in the eyes of the western world, Russia should be the only one to have nuclear weapons. As ckendall stated, the Budapest Memorandum was implemented and Ukraine is now left with no nuclear weapons. Because Ukraine no longer has nuclear capabilities, they don’t have capabilities to fight the conventional forces of Russia. Essentially, when we decided to take away Ukraine’s nukes, we handed all of the power to Russia. If we would have allowed Ukraine to keep their weapons, would we still be in this situation today?

    Secondly, the US has gone to great lengths to say that countries close to the Russian border (Ukraine and Georgia) should be part of NATO. Obviously Russia would be unhappy when the western world continues to creep closer and closer to its border.

    If one were to take Mearsheimer’s causes, in order to end the problem, the US should back down on its push for countries along Russia’s border to join NATO and attempt to return to the ‘status quo’ as Mearsheimer stated. That is not to say that the protests, etc. would cease, but perhaps the Russian government would not feel the need to push themselves into the country.

    Perhaps if the western influence disappears from Ukraine, the Russian government will not feel compelled to invade Ukraine further (or could it have the opposite effect?) Instead of focusing on the actions of Putin, maybe the US should also be viewing the main causes of the situation and the fact that perhaps it’s not only due to a corrupt leader, but the actions the United States and the western world has taken in the region.

    Additionally, while I was listening to the lecture, I was wondering how we should think of this use of Russian troops in Crimea. Mearsheimer showed a map of ethnic areas in Ukraine, and Crimea is a pro-Russia area. If there was no resistance by Ukrainian forces in this area, and a majority of the population approves, what can the international community do?

  3. jhgmitch March 5, 2014 at 9:13 pm

    I am not in Grand Strategy but I did watch Mearsheimer on PBS Newshour. It’s well worth a look, http://video.pbs.org/video/2365193104/ What Mearsheimer said that I really liked was that the international community–and the United States–should not have been so surprised at Russia’s Crimea move. Tracy and pretty much everyone else has described Russia’s invasion as “unexpected,” which it was–but Mearsheimer pointed out why we should have expected it.

    The question is now: what should the US do about it? Europe cannot do anything particularly meaningful to gain leverage against Russia not so much because it is economically dependent on Russia than that Europe would rather not have a powerful enemy right on its borders.
    http://www.newyorker.com/online/blogs/johncassidy/2014/03/ukraine-crisis-keep-your-eyes-on-angela-merkel.html
    What Tracy was pointing to at the end of her paragraph was also something Mearsheimer said. We have VERY few options at our disposal–which is why, as Mearsheimer said, we “shouldn’t have got ourselves in this mess in the first place.”

    The United States and the West gave the Ukrainian people a huge amount of hope, which to a large extent was false hope. Mearsheimer basically said that we made a huge mistake in assuming that Russia would simply let Ukraine “join” the West if it wanted to–and though arguably it’s partly not our fault since western democracy and free markets are attractive in and of themselves, but we should never have explicit stated that we would support the Ukrainians on this one. The West is neither willing nor able to play tug of war with Putin. Until our false threats become real threats–which, by the way, I would NOT be in favor of–we should not play so callously with a state that Moscow has always viewed as one of its biggest strategic interests. Our top priority should be to deescalate tensions, and unfortunately the reality of what we have to do to deescalate the situation will be hugely disappointing to our friends in the Ukraine.

    One last point from Tracy’s post is the ICC and the crime of aggressive war. Without doubt Russia has violated international law. Putin has responded by saying that the United States also has a history of aggressive warfare. And while the tu quoque offense does not work in the court of law, it is a compelling argument and one that should remind our class of the West-bashing that frequently accompanies the international community or the ICC’s attempt to hold a war criminal accountable. http://ericposner.com/putins-tu-quoque-defense/ Of course, just as the United States has de facto impunity in all military matters so does Russia in this one. The UN or ICC cannot do a thing.

  4. masonnathaniel March 17, 2014 at 12:51 pm

    In response to the question of whether or not Russia’s actions in the Ukraine constitute an act of aggression, and if so, what can be done about it, I think it is important to go back to the ICC’s jurisdiction in regards to the crime of aggression and the definition of the “use of force” clause in the U.N. Charter. According to an article written by a U of C law school alum, it is not so crystal clear that Russia has violated international law, although she and almost any “credible observer”, she mentions, would say Russia’s actions do in fact violate international law. An important aspect of the controversy that she illustrates is the confusion surrounding whether or not Russia’s invasion into the Crimean peninsula is an “armed attack”. Technically, there has not been a shot fired (yet), but considering the massive amount of troops that have been located to Crimea by Russian forces without consent and Russia’s willingness to show its force almost excessively questions Putin’s intentions. Furthermore, if Russia’s actions are not considered an “armed attack”, Ukrainian forces may not necessarily have justification to exact force in self-defense under the U.N. charter. Most importantly, however, in regards to the ICC’s involvement in the matter is the court’s jurisdiction over crimes of aggression. According to the conference in which crimes of aggression were added to the Rome Statue, the court’s jurisdiction will not set in until 2017 at the earliest. This raises real questions for whether the court would be interested in pursuing charges against Russia in three years, let alone if they would even have jurisdiction over cases of aggression that occurred before 2017.

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