Putin’s War: A Flagrant Violation of International Law

The latest imagery of Russian-occupied regions of Ukraine exposes horrifying civilian attacks.[1]  Bodies of men and women lie in the street.[2]  Images released Sunday, April 3, reveal a pile of partially burned and nude corpses along the highway outside of Kyiv.[3]  Leaders across the globe condemn Russia’s invasion of Ukraine and call for investigations and prosecutions of Russian officials including Russian President Vladimir Putin for ongoing war crimes committed against Ukrainian civilians.[4]

The war in Ukraine represents a two-fold violation of international law as: (1) an unlawful invasion under United Nations Charter prohibitions and (2) humanitarian abuses amounting to war crimes, invoking liability from the International Criminal Court (ICC).[5]

First, Russia’s unprovoked invasion of Ukraine imposes liability for the crime of aggression under Article 2(4) of the UN Charter, which prohibits the “use of force against the territorial integrity or political independence of any state.”[6]  Russia attempted to justify its egregious invasion by claiming self-defense under Article 51 of the UN Charter.[7]  The UN General Assembly rebuked this defense and the International Court of Justice found Russia’s claims, including allegations that they were acting to prevent acts of Ukrainian genocide against Russians, to be baseless.[8]  The UN Security Council denounced the invasion and imposed international legal obligations on Russia to cease military activity and leave Ukraine in a proposed binding resolution, which was immediately vetoed by Russia.[9]

Second, Russia’s invasion is not only unlawful from its inception but also from its ongoing human rights violations against the civilians of Ukraine.  As of April 3, 2022, the United Nations Office of the High Commissioner for Human Rights reported a total of 3,455 recorded civilian casualties.[10]  Reports indicate indiscriminate shelling and bombings involving highly deadly cluster munitions in dense cities.[11]  At least 43 hospitals and medical facilities have been attacked, including a maternity hospital in the occupied port city of Mariupol.[12]

An increasing number of images released to the public expose harrowing evidence of summary executions, sexual violence, mass graves, and torture in Russian-controlled regions of Ukraine.[13]  Human Rights Watch (HRW) released a statement on March 4, a day after the release of images displaying civilians lying in the streets of Bucha.  Following their investigations, the HRW found "several cases of Russian military forces committing laws-of-war violations" in Russian-controlled Chernihiv, Kharkiv, and Kyiv.”[14]

Kremlin spokespeople deny allegations of war crimes and civilian target strikes.[15]  HRW urges Russia to act upon its international legal obligation to investigate and cease humanitarian abuses against civilians.[16]

President Biden and United States Secretary of State, Antony Blinken explicitly denounced these actions, calling Putin a “war criminal.”[17]  Some argue that this strong accusation could help encourage legal action against the Kremlin and Russian leadership for human rights transgressions under the ICC.[18]  However, it more likely serves as a political statement to further invoke global outrage against Putin’s war and demand accountability in the court of public opinion due to the improbability of successful ICC legal action.[19]   

Liability for war crimes under the ICC remains unlikely.[20]  ICC Judge Chile Eboe-Osuji stated that under its current statutory terms, the ICC “cannot try the crime of aggression when committed anywhere by an individual from a non-ICC State, except if the UN Security Council refers the matter to the ICC.”[21]  Therefore, the ICC cannot try Russian leadership for war crimes in Ukraine, a non-ICC state, unless the UN Security Council refers the case to the ICC.[22]  This referral appears highly improbable as Russia would almost certainly block the vote by exercising its veto power.[23]

Nevertheless, the ICC continues to aggregate evidence and issue reports of wartime offenses.[24]  The UN Human Rights Council established a supplementary commission to help the ICC’s war crimes investigation.[25]  Furthermore, political leaders and human rights organizations across the globe maintain the call for a cease of Russia’s military operations and subsequent adjudication to bring justice to Ukrainian citizens.[26] 

Halley Herbst is a staff member of Fordham International Law Journal Volume XLV.

This is a student blog post and in no way represents the views of the Fordham International Law Journal.
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[1] See Bethan McKernan, Rape as a Weapon: Huge Scale of Sexual Violence Inflected in Ukraine Emerges, The Guardian (Apr. 4, 2022) https://www.theguardian.com/world/2022/apr/03/all-wars-are-like-this-used-as-a-weapon-of-war-in-ukraine.

[2] See id.

[3] See id.

[4] See Katerina Ang, Russia Committed War Crimes, US Says. These World Powers Agree, Wash. Post (Mar. 24, 2022) https://www.washingtonpost.com/world/2022/03/24/russia-war-crimes-global-response-ukraine/.

[5] See Malcolm Langford & Geir Ulfstein, Russia Has Violated the Fundamental Rules of International Law. What are the Consequences?, Peace Research Institute Oslo (Mar. 2, 2022) https://blogs.prio.org/2022/03/russia-has-violated-the-fundamental-rules-of-international-law-what-are-the-consequences/.

[6] U.N. Charter art. 2, ¶ 4. https://legal.un.org/repertory/art2.shtml.

[7] See Langford & Ulfstein, supra note 5; see Michael Schmitt, Russia’s ‘Special Military Operation’ and the (Claimed) Right of Self-Defense, Lieber Institute – United States Military Academy West Point (Feb 28, 2022) https://lieber.westpoint.edu/russia-special-military-operation-claimed-right-self-defense/.

[8] See Oona Hathaway & Ryan Goodman, Why China Giving Military Assistance to Russia Would Violate International Law, Just Security (Mar 17, 2022) https://www.justsecurity.org/80709/why-china-giving-military-assistance-to-russia-would-violate-international-law/.

[9] See Langford & Ulfstein, supra note 5.

[10] Ukraine: Civilian Casualty Update 3 April 2022, United Nations Hum. Rts. Office of the High Comm’r for Hum. Rts. (Apr. 3, 2022) https://www.ohchr.org/en/news/2022/04/ukraine-civilian-casualty-update-3-april-2022.

[11] See Stephen Farrell, Human Rights Watch Accuses Russia Forces of ‘Apparent War Crimes’ in Ukraine, Reuters (Apr. 3, 2022) https://www.reuters.com/world/europe/human-rights-watch-accuses-russian-forces-apparent-war-crimes-ukraine-2022-04-03/.

[12] See Diane Cole, Russia’s Strike on Ukraine Maternity Hospital is Part of a Terrible Wartime Tradition, NPR (Mar. 16, 2022) https://www.npr.org/sections/goatsandsoda/2022/03/16/1086982186/russias-strike-on-ukraine-maternity-hospital-is-part-of-a-terrible-wartime-tradi.

[13] See Joseph Clark, Former U.N. War Crimes Prosecutor Calls for Putin to be Held Accountable for War Crimes in Ukraine, Wash. Times (Apr. 2, 2022) https://www.washingtontimes.com/news/2022/apr/2/former-un-war-crimes-prosecutor-calls-putin-be-hel/; see David Hume Kennerly, Photographing Hell, NY Times (Apr. 16, 2022) https://www.nytimes.com/2022/04/16/opinion/international-world/ukraine-war-bucha-photographs.html (“The images of these atrocities [in Bucha] were taken by trusted photojournalists. They are the truth, and a record of the mendacity and brutality of the Russian military”).

[14] Farrell, supra note 11.  

[15] See id.

[16] See id.

[17] See Zeeshan Aleem, The Real Reason Biden is Calling Out Putin as a ‘War Criminal,’ MSNBC (Apr. 1, 2022) https://www.msnbc.com/opinion/msnbc-opinion/biden-accusing-russia-s-putin-war-crimes-big-deal-n1293798.

[18] See id.

[19] See id.

[20] See Tom O’Connor et al., US, Ukraine Build Russia ‘War Crimes’ Case But Not Likely Putin Sees Court, Newsweek (Mar. 30, 2022) https://www.newsweek.com/us-ukraine-build-russia-war-crimes-case-not-likely-putin-sees-court-1693502.

[21] Id.

[22] See id.

[23] See id.

[24] See id.

[25] See id.

[26] See id.