Russia is invading Ukraine. The war will be short, deadly and one-sided. Russia will win. Ukraine, quite possibly, will cease to exist.
It strikes as unusual, because in living memory it is. Whatever Russian President Vladimir Putin says about it, he has undertaken an invasion of conquest of another sovereign state. We haven’t seen anything like it, apart from Saddam Hussein’s abortive attempted takeover of Kuwait in 1991, since World War II. Prior to that, of course, this kind of thing had been de rigueur for any self-respecting major player.
The nation state is a relatively modern invention, but the law recognises it as a definite thing and modern international law has it as its bedrock. Sovereignty — territorial and political — is fundamental.
What the law says about Russia invading Ukraine is simple: it’s illegal. Wars of aggression, as this would be defined, have only been explicitly unlawful in international law since 1974, but the idea that they should be has been around for a very long time. Since the League of Nations was created out of the ashes of World War I, there has been general acceptance that invading other countries is wrong.
The United Nations turned its mind specifically to “aggression” in 1967. After seven years of arguing over semantics, a special committee reported back to the General Assembly, which adopted Resolution 2330 without demur. It defines what is an “act of aggression”, for the purposes of the UN Charter established in 1945.
The resolution speaks of “aggression” as “the most serious and dangerous form of the illegal use of force”. Specifically, aggression is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”. It includes invasion, bombardment, blockades or any other form of attack by armed forces. It describes every single thing Russia is doing to and in Ukraine.
Crime without punishment
Russia is breaking the law, but what are the consequences? Under the UN Charter, acts of aggression are the domain of the Security Council, which has power to decide on measures in response, including armed force. Member states are bound to assist. In the case of Iraq’s invasion of Kuwait, that’s what happened: the Security Council said it was illegal and everyone got together to kick the Iraqis out.
Russia, as a permanent member of the Security Council, has a right of veto over any decision the council wants to make. There is no principle of conflict of interest; a member state is not obliged to recuse itself from decisions relating to its own conduct. So, nothing will happen there. (In any event, China would certainly exercise its own veto over any action against Russia.)
No “coalition of the willing” then, and the technical illegality of Russia’s actions will lead to the same dead end as any threat of practical response. Nobody’s coming to Ukraine’s rescue, militarily or legally.
Russia’s action is also, separately, a crime. International criminal law recognises a crime of aggression, as a category of war crime. Again, the concept has been around for ages (since a bunch of high-ranking Nazis were convicted of “crimes against peace” for starting World War II). It was added in 1998 to the Rome Statute, which governs the International Criminal Court (ICC).
The crime, which can be prosecuted and punished by the ICC, involves the “planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression”, as defined by Resolution 3314.
Basically, it means that Putin, being the guy driving all this and causing Russia to commit an illegal act of aggression against Ukraine, is personally committing a war crime.
Problem: Russia is a not a signatory to the Rome Statute and has not subjected itself to the ICC’s jurisdiction. Putin can’t be prosecuted for invading Ukraine. He can, arguably, be prosecuted for acts of aggression committed within Ukraine, which is a member of the ICC.
Practically, that’s not going to happen, although Putin’s personal freedom of movement may now be impinged, because of the theoretical risk of being arrested and sent to the ICC if he ventures into a country which is an ICC member and where there’s a government and court brave enough to try it on.
In one sense, this is all academic, because the law won’t stop this disaster any more effectively than empty threats of retaliation. However — and this is something of which we should never lose sight — there is a reason why, in the world post-World War II, what Russia is doing by invading Ukraine is so exceptional. The international rule of law, for all its faults, has contributed substantially to making invasions of conquest largely a historical relic.
So we should call it out as the crime that it is, even if that’s all we can do, lest it become the unexceptional way of things once more.
