International Law and Russia's Invasion of Ukraine - Protected View

Ryan Campbell

Since Russia invaded Ukraine, many have condemned Russia’s war as illegal. However, international law is a highly complex topic and not as clear-cut as many believe. Rather than a strict set of rules nations are obligated to follow - like common laws -international laws are set in place to mediate international relations. The United Nations defines international law as the law governing relations between states rather than a binding set of rules they must strictly follow.

International law originates in Customary International Law, which is just a fancier way of saying common courtesy between two nations. An example of this is granting diplomatic immunity to visiting Heads of State; something practiced widely before more defined codes were implemented. However, after WWII, new regulations were put into place in the form of treaties, and this is where international law becomes practically impossible to enforce universally. Treaties must be agreed upon by all parties that will be bound by them, meaning that if a state does not agree to the terms or regulations, it can simply deny its involvement in the treaty. Because this is the case, international law is not equal between countries, there is no real body to enforce these laws if they are broken, and they have a history of being bent and ignored. You can see my article on Australian Refugee Camps as an example.

So, Russia isn’t necessarily bound by all international laws. But I am sure some of you are screaming at the screen right now, ‘What about the UN?’ And it’s a good question. Russia is a founding member of the UN, meaning the UN Charter binds them. The mission statement of the UN is “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” An unjustified war against Ukraine doesn’t seem to fit this mission statement all that well. Furthermore, the UN Charter states in Article 2 that member states must refrain from the “use of force against the territorial integrity or political independence of any state.”

Another problem arises here. The UN doesn’t necessarily have the power to enforce international law either. The United Nations is an organization that mostly settles disputes instead of taking military action. The General Assembly is a very large stage with very limited power, as the resolutions it passes are not legally binding, and in no case can it order military action to intervene in a war. The Security Council, however, can. The Security Council is part of the UN, consisting of five permanent members and ten temporary members, and can impose sanctions, create peacekeeping operations, condemn other countries, and order military actions. But any of the five permanent members can veto resolutions.

And this is where it gets even harder to take legal action against Russia. Russia is a permanent member of the Security Council, meaning Russia will promptly veto any resolutions against them. As of writing this article, this has already happened. So, the UN has almost no path to enforcing its law on Russia, especially since 3/10 temporary members in 2022, being the UAE, India, and China, are abstaining from involving themselves in the conflict and refusing to vote.

While I have admittedly sounded very defeatist in this explanation, there is one way Russia can be held accountable- International courts. The International Court of Justice (ICJ) is viewing claims made by Ukraine against their invasion, and since they are a branch of the UN, which Russia is again a member of, their decision is binding and cannot be vetoed by the Security Council, but it still has no way to enforce this ruling. The second major international court, the International Criminal Court, is slightly more confusing. The International Criminal Court (ICC) is somewhat different than the ICJ, focusing more on the prosecution of war crimes, the enforcement of which is handled by states agreeing to the Rome Statute. The Rome Statute established the ICC, an agreement to which Russia is not party to; however, Ukraine is. Ukraine’s involvement with the ICC means that Ukraine can file complaints against offenses occurring on their territory. So, whereas the ICJ can definitively state that Russia’s war is illegal, the ICC can prosecute Russian individuals involved for war crimes.

So, is Russia’s war on Ukraine illegal? Considering they are not acting in self-defense, nor are they preventing a genocide- two exceptions to the UN Charter on invading another state- yes, Russia is violating international law. Considering this, the ICJ will likely rule against Russia, as will the ICC for the war crimes seen during the invasion. But the law takes time to move, and Ukraine is actively being attacked, so for the time being, any aid for Ukraine will have to come from nations that support them in the form of sanctions and military or humanitarian aid and not the law.