AUSTIN (KXAN) — It’s a question that has been met with widespread, overwhelming agreement. Is Russia’s invasion of Ukraine lawful?
“If this was my classroom, I would wait for someone to put their hand up,” an intelligence and law expert at the University of Texas at Austin said during a panel on that war this week. “I know that you would all say ‘no.'”
Bobby Chesney is the dean for academic affairs at the University of Texas School of Law and the director of the Robert Strauss Center for International Security and Law. He also previously worked for the Justice Department in connection to the Detention Policy Task Force.
He spoke this week to UT students and staff about international law as it relates to what’s going on in Ukraine right now.
How does international law apply?
Legal experts overwhelmingly agree that Russia’s unprovoked invasion of Ukraine is a clear violation of the United Nations Charter and of international law.
“The UN Charter, Article 2(4) prohibits the use of force in violation of the sovereignty or territorial integrity or political independence of other states,” Chesney explained. “It is the legal linchpin of the international order of the rule of law that’s characterized in the post-World War II period.”
On Wednesday, the UN General Assembly adopted a resolution formally condemning Russia’s use of force and recognized possible violations of international humanitarian law (IHL) which has its base in the Geneva Conventions. That vote happened in a historic emergency meeting.
Russia voted against that measure. So did Belarus, Syria, North Korea and Eritrea. There were 35 members who abstained, including China.
Meanwhile, the International Court of Justice is the judicial branch of NATO that oversees disputes between nations — and Ukraine has already brought a case forward accusing Moscow of planning genocide to validate its invasion. It asked the court to halt the invasion and order Russia to pay reparations as provisional measures.
The court will hold public hearings on March 7 and 8, according to court records.
Orders by the International Court of Justice are legally binding, but not always adhered to. The court would also have to determine that it has jurisdiction, but it’s not the first time Ukraine has brought claims against Russia to this body.
Is Russia a party to the ICC? Does it matter?
While the International Court of Justice hears disputes between nations, the International Criminal Court holds individuals responsible for offenses including war crimes.
While neither Russia or Ukraine are officially a part of the International Criminal Court (ICC) because they have not signed onto the Rome Statute, Ukraine has accepted the jurisdiction of the court which would make its rulings binding for them.
The ICC has officially opened an investigation into the situation in Ukraine as of earlier this week.
“We will remain focused on our core objective: ensuring accountability for crimes falling within ICC jurisdiction,” ICC Prosecutor Karim Khan, wrote in a statement.
The Rome Statute of the ICC lays out war crimes under the Geneva Convention and other international law including:
- Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities
- Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions
- Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict
You can read the rest of that statute on the ICC website.
Two Republican senators announced Wednesday that they were offering separate resolutions urging the International Criminal Court and the International Court of Justice to investigate Putin for war crimes and crimes against humanity, NBC News reports.
Are there other ways to prosecute Putin should this escalate?
Chesney referred in his speech to the trials of German leadership who backed the Nazi dictatorship during WWII.
“It’s what the Nurnberg Tribunal termed a crime against peace, it’s the crime of aggression,” he said talking about Russia’s attack of Ukraine.
While many high-profile Germans, like Adolf Hitler, died by suicide before those trials came to be, more than two dozen were sentenced to death and more than 160 convicted of war crimes.
It’s an example of “universal jurisdiction” being used.
There have not been discussions about prosecution outside of international legal bodies already established at this point.
What is Russia’s argument?
Chesney says Russia is making two legal arguments to the international community and to their own public — and neither hold water.
The first argument Putin is making, especially to its own people, is that Ukraine was actually going to attack Russia and that its subsequent attack was one of self-defense. There is no evidence to show that there is any validity to that.
The other argument Putin is making is that regions in Ukraine that have been previously invaded and occupied by Russia, which Putin has since claimed are separatist states, are facing an imminent threat from the government in Kyiv and that Russia is coming to their defense.
“That’s not how this works,” Chesney said plainly, noting it was a violation for Russia to unlawfully claim those territories in the first place and that under the rules of the UN charter, the response one would have in self-defense has to be proportional.
Is the US providing guns to Ukraine lawful?
It is, Chesney said, because the United States is providing weaponry to a sovereign government on its soil — so there are no breaches of international law.
“The only interesting questions are policy questions. Putin has made over the past 24 hours increasingly loud statements that the Russians will begin to treat these weapons transfers as acts of participation,” he continued.
What about US domestic law?
Which brings us to whether it’s okay for the United States government, namely the Biden administration, to support the Ukrainian government without an act of Congress.
“We’ve done a lot of things under color of the post-2001 Authorization for Use of Military Force following the 9/11 attacks. It has no application here,” Chesney explained.
He says there’s no question that the actions taken so far don’t apply, but that should things escalate and Americans get brought into combat operations, then it would have to go to Congress.
“Below the threshold of war is where we’re at right now,” he said.