Russia invaded Ukraine in the early hours of February 24, 2022 attacking the country on multiple fronts and targeting numerous cities with missile and aerial strikes as well as ground forces.[1] By the following day, its forces were closing in on Kyiv, the capital.[2] Russia’s use of force follows weeks of tensions and the recognition of two breakaway regions in Ukraine as independent a few days prior on February 21.[3] Putin had been antagonised by the prospect of Ukraine and Georgia joining NATO and sought to block the organisation’s eastward expansion and its encirclement of Russia.[4] Ukraine has since requested the help of the international community which has responded with military and humanitarian aid and harsh sanctions on Russia but stopped short of sending troops to the country. The country has also sought relief at international forums such as before the International Court of Justice and the International Criminal Court. This article analyses the legal aspects of the conflict, including its illegality under international law, the courts which may play a role in holding Russia accountable for a breach of international law, and the potential implications for Pakistan.
Background
An estimated 977 people have died in the current conflict between Russia and Ukraine with 1,594 injured.[5] More than 3.3 million people have fled the conflict since it began, most of them seeking refuge in neighbouring Poland.[6] Russia has reportedly targeted civilian infrastructure in urban and densely-populated areas using imprecise weapons such as ballistic missiles and cluster munitions.[7] A maternity hospital in Mariupol where civilians were sheltering was bombed, civilians trying to flee through humanitarian corridors were attacked, and humanitarian aid was prevented from entering cities.[8] The US has formally accused Russian forces of committing war crimes in Ukraine and has said it will pursue accountability through every tool available.[9]
The international community has acted rapidly to censure Russia’s actions. The United States and its allies have imposed the toughest sanctions on it with the aim of rendering Putin’s war chest unusable.[10] Russia has been expelled from the Council of Europe,[11] trillions of dollars worth of Russian assets have been frozen, some of their banks have been blocked from SWIFT, Russian airlines have been precluded from using their airspace, many companies have suspended services in the country, and Germany has halted approval of Russia’s Nord Stream 2 gas pipeline.[12] The rouble has since crashed and the Russian economy is reeling from the impact of these sanctions.
While NATO has not come to Ukraine’s direct aid in the form of forces on the battlefield, Western states have provided military aid to Ukraine in the form of anti-tank and air defence capabilities, sending cybermission teams to bases around Eastern Europe, as well as troops to Germany.[13] At the same time, it is difficult for European states to cut off Russia entirely given it supplies about 40 percent of Europe’s gas and 30 percent of its oil.[14] Though Germany does continue to take Russian gas through Nord Stream 1 while otherwise persisting with sanctions,[15] any suspension in these supplies by Russia could result in an energy crisis in Europe.[16]
Russia sees a potential NATO member at its border as an existential threat which the West has been planning since 2014. In that year, the Maidan revolution took place which ousted a Kremlin-backed government in Ukraine in favour of one supported by the US and Western Europe.[17] Russia invaded and annexed Crimea shortly after and has since then backed Russian separatists in eastern Ukraine.[18] Though the government and people of Crimea largely supported secession from Ukraine and the Russian annexation, the act was condemned by the international community as a violation of international law.[19] As a result, sanctions were placed on Russia, albeit mild ones compared to those in force today. All foreign business was banned in Crimea and the access of large Russian companies to Western markets was limited.[20] Since then, Russia has acted to ‘sanction-proof’ its economy in an effort to withstand such measures by accumulating large foreign currency reserves and developing alternative payments mechanisms.[21]
The strategy of encirclement of Russia pursued by NATO had antagonised the country. Putin recently issued a list of demands to the US and NATO and senior officials warned of a military response if Russia’s security concerns continued to be ignored.[22] The map below shows why there is so much insecurity on Russia’s side. Stalin once quipped in reply to a question regarding his hostility to Finland, “[w]e cannot do anything about geography, nor can you,”[23] and with anti-ballistic missile sites being built in Poland and Romania by NATO, Putin could say the same.[24] If Ukraine were included in the fray, NATO missiles could potentially be placed up against Russia’s border.
The Invasion under International Law
Russia’s invasion of Ukraine is a violation of the prohibition on the use of force under Article 2(4) of the United Nations Charter.[25] There are two exceptions to this prohibition; the use of force in self-defence under Article 51 of the Charter and collective security operations mandated by the Security Council. A use of force which does not fall within these exceptions is an act of aggression. Putin has confusingly advanced a number of arguments defending Russia’s use of force – using language which hints at a humanitarian intervention argument, a protection of nationals argument, an anticipatory self-defence argument, as well as a collective self-defence argument.[26] However, as per Russia’s recent submissions to the International Court of Justice, it has decided to defend its use of force as a form of collective self-defence under Article 51 of the UN Charter for the supposedly independent Donetsk and Luhansk republics.[27] Its submissions to the Court quote Putin’s speech from February 24, 2022:
“They did not leave us any other option for defending Russia and our people, other than the one we are forced to use today. In these circumstances, we have to take bold and immediate action. The people’s republics of Donbass have asked Russia for help. In this context, in accordance with Article 51 (Chapter VII) of the UN Charter, with permission of Russia’s Federation Council, and in execution of the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic, ratified by the Federal Assembly on February 22, I made a decision to carry out a special military operation.”[28]
It states that the legal basis for the military operation was communicated on 24 February 2022 to the Secretary-General in the form of a notification under Article 51 fulfilling the procedural requirement in the provision.[29] It further grounds the recognition of these republics as a sovereign act by Russia in relation to their right to self-determination. Russia appears to be relying on a theory that a violation of the right to self-determination gives rise to a right to remedial secession – a stance consistent with Russia’s appearance before the ICJ in the Kosovo Advisory Opinion.[30]
Self-determination gives a ‘people’ the right to freely determine, without external interference, their political status and to pursue their economic, social and cultural development. This integral principle of customary international law is based on the principle that a people should be free to conduct their internal affairs and external relations as they see fit.[31] The ICJ in the Western Sahara case held that ‘the application of the right to self-determination requires free and genuine expression of the will of the peoples concerned’.[32] Russia’s focus on remedial secession adopts the view expressed in the Canadian Supreme Court’s case on Quebec, in which it differentiated between internal and external self-determination.[33] So long as the requirements for internal self-determination are met, namely, that a peoples has a right to practice its culture, speak its own language, and participate in the political and economic life of its community, then any remedies would be through domestic and human rights law.[34] Where these requirements were not met, this could, in exceptional circumstances, give rise to a right of external self-determination, in which secession could be an option.[35]
However, there is not yet customary acceptance that a right to remedial secession exists outside the colonial context. Moreover, the argument that Russia is acting in collective self-defence of these Republics would only be tenable if they were States and provided Ukraine had subjected them to an armed attack. Neither of these claims hold much weight as even if the legal criteria for statehood under the Montevideo Convention were met for these Republics, the second requirement of an (imminent) armed attack has not transpired. A vague threat emanating from Ukraine to these two entities would not suffice as a basis for a use of collective, anticipatory self-defence under international law. Moreover, the extent of the military intervention and the declared goal to demilitarise Ukraine would not fulfil the criteria that the use of force in self-defence be necessary and proportionate.
As such, Russia’s invasion of Ukraine is an illegal use of force and an act of aggression.
Other International Law Aspects to the Conflict
Complicity of other States
A number of Russia’s armed forces responsible for launching the large-scale ground attack against Ukraine entered through the north through Belarus.[36] The Ukrainian president has since refused to come to Minsk for peace talks citing the State’s lack of neutrality and countries are increasingly extending their sanctions against Russia to include Belarus.[37] Under the law of state responsibility, Belarus could be complicit in Russia’s violation of international law by permitting the use of its territory to commit an act of aggression. Article 16 of the International Law Commission’s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts states that aiding or assisting another State’s wrongful act is a violation of international law.[38] Belarus has provided substantive assistance for Russia’s attack in permitting its troops to cross its territory and providing logistical support and therefore may be responsible for a violation of Article 16.[39]
Furthermore, Belarus may have also committed another breach of international law. Under Article 3(f) of the Definition of Aggression, an act of aggression is also constituted by “[t]he action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State”.[40] When States provide their territory as a launchpad for attacks against a third State, it could cause harm to an adversary and render it a co-belligerent.[41] For instance, in the Iraq War of 2003, the US deemed Kuwait and Qatar as its co-belligerents against Iraq as it launched its military operations from their territory.[42] Similarly, Belarus could arguably be a party to the conflict with Russia.[43]
Foreign Fighters
Russia and Ukraine are both recruiting foreign fighters to the armed conflict. Russia is reportedly recruiting Syrians and other foreigners in its assault on Ukraine[44] while the Ukrainian President called for foreigners to join the International Legion of Territorial Defense (ILTG) and travel to Ukraine to defend the country.[45] On March 1, the Ukrainian President announced that 16,000 foreign fighters have since volunteered for military service.[46] Hundreds of which have signed up and travelled to Ukraine.[47] The mass recruitment of foreign fighters in conflict is not a new phenomenon, given such waves were also involved in Afghanistan, Iraq, and Syria. However, the international support given to such fighters is new. For instance, fighters have gone from the US, Canada, France, Croatia and other countries to Ukraine and UK Foreign Secretary, Liz Truss, has even expressed her support for British nationals who do go to fight for the country.[48] Similarly, Germany has said it will not prosecute volunteers who join the Legion.[49] While under international law such fighters are to be considered combatants as they belong to a party to the conflict, Russia has stated that it will treat them as mercenaries and not give them prisoner of war status upon capture.[50]
Cyber Warfare
Thus far the conflict has been largely conventional although there has been much talk of this being the first cyber war. Some argue that there is a distinct and significant cyber component to it while others maintain that this conflict is inherently conventional proving that cyber warfare, while good for low-level harassment tactics, “still cannot do what missiles, soldiers, and fighter jets can do”.[51] As a result, beyond sowing confusion about events, the cyber element of the conflict has not yet had any material effect on the conflict.
However, this could change as the conflict becomes more protracted and hostilities ebb and flow. In the days after the invasion, Ukraine’s Deputy PM announced the creation of an ‘IT army’ which reportedly some 400,000 people from across the world have joined.[52] A list of targets have been published which include governmental departments, businesses and banks in Russia and Belarus and a number of cyber attacks have been conducted against them.[53] These attacks have knocked offline websites belonging to the Kremlin, Foreign Ministry, and Ministry of Defence and defaced other public and private sector websites.[54] While there have been reports of a massive leak of personal data of Russian soldiers which would signal an escalation of cyber tactics, this has not yet been verified.[55] The US has also sent forces from its Cyber Command to bases in Eastern Europe in order to interfere with Russia’s digital attacks and communications.[56] Cyber mission teams involved in the conflict have been tracking Russia’s military intelligence operations in an attempt to neutralise their activity.[57] In terms of whether this makes the US a ‘party to the conflict’, according to America’s own interpretation of the laws of cyberwarfare, they can temporarily disrupt Russian capability without it being an act of war, but permanent disablement may render them a co-combatant.[58]
It remains to be seen whether cyber operations in the course of this conflict entail any kinetic consequences as doing so would render the State responsible, a party to the conflict.
The Role of Courts
International Court of Justice
On February 26, 2022, Ukraine filed an Application and a Request for Provisional Measures before the International Court of Justice against Russia.[59] It bases the Court’s jurisdiction on the compromissory clause of the Genocide Convention using a very creative argument that hinges on the fact that Russia has manipulated the notion of genocide to justify its aggression.[60] Putin had stated that Ukraine was committing genocide in the Donbas region against Russians and therefore a military intervention was necessary to prevent this. He had said that he launched the assault in order “to defend people who for eight years are suffering persecution and genocide by the Kyiv regime”.[61] As a result, Ukraine argues it has standing before the Court as a ‘dispute’ between the States exists on the basis that there is an issue relating to the interpretation, application or fulfilment of the Genocide Convention.[62] The question it puts before the court is whether a false argument that genocide has taken place can ever be used to justify an act of aggression.[63]
Ukraine also accuses Russia of carrying out the actus reus of genocide by intentionally killing and inflicting serious injury on Ukrainian nationals, accompanied by what Ukraine considers rhetoric suggestive of genocidal intent. However, it seems aware that it is unlikely that the Court will adjudicate that genocide is actually taking place in this instance, and is hedging its bets on the argument above in order to ground the existence of a dispute. It seems that Ukraine is not interested at this stage in winning the merits of the case but only in obtaining the provisional measures it seeks.[64] It asked that the Court order that Russia suspend its military operations, ensure that armed units directed or supported by it do not further the military operation, refrain from aggravating or extending the dispute by providing assurances to that effect, and report to the Court on its implementation of the order.[65] Harold Koh, as a counsel for Ukraine, stated that “President Putin’s short game is force. The world’s long game is law.”[66]
Russia refused to appear before the Court in its public hearing but did submit a document setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case on March 7.[67] It argues that the Court does not have jurisdiction over the situation as use of force issues falls outside the scope of the Genocide Convention and its compromissory clause.[68] Russia, moreover, denies that allegations of genocide are linked with its use of force against Ukraine, instead justifying it on the basis of collective self-defence under Article 51 of the UN Charter.[69] Therefore, no dispute exists between it and Ukraine which would give the Court jurisdiction over the matter.
The Court issued its order relating to provisional measures on March 16 and essentially accepted all of the arguments made by Ukraine by 13 to 2 with only the Russian and Chinese judges ruling against.[70] It accepted Ukraine’s argument that it had a right under the Genocide Convention to not be subjected to a use of force on a baseless claim of genocide and rejected Russia’s argument that there was no dispute over which it could base its jurisdiction.[71] It also accepted nearly everything that Ukraine had requested in its application, albeit with somewhat changed language, to the exclusion of requiring that Russia submit a report to the Court regarding the implementation of the Order.[72] Whether it wins on the merits or not, this order is itself a success for Ukraine which managed to obtain a moral victory in the form of an international court sanctioning and ordering that Russia suspend its military operations in the country.
International Criminal Court
The International Criminal Court (ICC) has been investigating war crimes and crimes against humanity in Ukraine since 2014. However, at the beginning of March 2022, the Prosecutor announced that the inquiry should also include all new suspected crimes being committed and requested that State parties expedite this by referring the situation under Article 14 of the Statute.[73] 39 countries acted on his call and petitioned the ICC to begin an investigation. On March 2, the president of the ICC assigned a pre-trial chamber to determine whether a full investigation should be opened.[74] While neither Ukraine nor Russia are party to the Rome Statute, Ukraine had issued two declarations under Article 12(3) granting it jurisdiction over crimes in its territory going back to November 2013.[75] The second declaration has no temporal limitation and will cover current crimes committed in the country.[76] The Prosecutor has since said that his Office can now proceed with opening an investigation with its scope encompassing any past and present allegations of war crimes, crimes against humanity or genocide committed in Ukraine.[77] However, the Court will not have jurisdiction over the crime of aggression as it has no jurisdiction over the crime when it has been committed by the nationals, or on the territory of, a State not Party to the Rome Statute.[78] States are now seeking to fill this gap through the use of universal jurisdiction.
Universal Jurisdiction?
Countries can also convict perpetrators of international crimes in their own courts under the mode of universal jurisdiction. It is likely that these cases will concern alleged war crimes and crimes against humanity of former mid- and low-level commanders and foot soldiers of Russia and Belarus if they find themselves in the territories of countries willing to arrest and prosecute them.[79] Most former high-ranking officials will likely carefully plan their travel to preclude opportunities for their arrest.[80] Those still in their roles will be protected altogether by virtue of their personal immunity.[81] Moreover, it is still contested whether aggression is an international crime for which universal jurisdiction can be exercised given limited state practice on the matter.[82] It seems therefore, that the prospect of State jurisdiction over this crime is rather limited. As a result, 40 legal and political academics have signed a Declaration calling on the international community to create a Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine.[83] However, as Heller points out, “[a] Special Tribunal created and run by the same states that invaded Iraq would not be legitimate.”[84]
The Impact on Pakistan
Pakistan has not taken a position on Russia’s invasion of Ukraine, preferring now to stay out of global power politics. Prime Minister Imran Khan happened to be in Moscow on a scheduled visit on the day of Russia’s invasion of Ukraine. While he described the trip as an “exciting” time to be there he also stated he hoped the crisis would be resolved peacefully.[85] As can be seen from the map of State reactions below, Pakistan abstained from the General Assembly Resolution condemning Russia’s invasion, along with India, Sri Lanka, and Bangladesh.[86] Only Syria, Cuba, and Venezuela have said that Russia had the ‘right’ to invade.[87]
Pakistan is also in a difficult spot between the two countries as it has purchased military tanks from Ukraine and has agreed to import 2 million tons of wheat from Russia.[92] The day after PM Khan’s visit to the Kremlin, Ukraine’s ambassador in Islamabad reminded Pakistan it had imported 1.3 million tons of wheat from Ukraine the year before.[93] Russo-Pak relations have also had a fraught tenure historically due to Pakistan’s alignment with the US during the Cold War, the Soviet invasion of Afghanistan, and the fact that Russia is India’s largest supplier of weapons and systems.[94] However, Pakistan is aspiring towards regional integration now more than ever and its National Security Policy seeks to reimagine the country’s ties with Russia in energy, defence, cooperation and investment.[95] Russia has already agreed to invest in the Pakistan Stream Gas Pipeline worth more than 2 billion USD that would help alleviate Pakistan’s energy woes.[96] However, as of yet, Pakistan has not yet hosted a Russian head of state.[97]
Pakistan’s new policy of non-alignment should be maintained and at the same time its legal position should also be congruent. For instance, Pakistan should sustain its support for the right to self-determination and for national liberation movements in line with its long-held policy on Kashmir. However, it should be cautious of Putin’s claims that “Ukraine is not just a neighboring country for us. It is an inalienable part of our own history, culture and spiritual space” as he goes so far as to say that the people and land are historically Russian.[98] Instead of claims of historical title being given precedence, Pakistan should place the focus on effective vehicles to exercise the right to self-determination, such as through referendums.
Conclusion
Commentators who note that Putin is an avid chess player like to paint the events in Ukraine as a game between him and the West, however, any victory Russia might win in Ukraine may be a pyrrhic one.[99] The political fate of Ukraine will ultimately be determined by Russia’s ability to economically support its war effort. NATO seems to want to lure Russia into an Afghanistan-like long occupation/insurgency in order to bleed it dry.[100] The war is roughly costing Russia as much as 20 billion USD a day[101] and Europe is increasingly likely to look for avenues to move away from its reliance on Russian energy. That may mean building infrastructure to support the import of US gas and oil. While international law may have a role to play in this conflict especially as the international community seeks forums for accountability, enforcement, as always, is the Achilles’ heel of the laws of war. It remains to be seen whether the UN, and international forums in general, have evolved from Bush’s taunts of being an “ineffective irrelevant debating society”.[102] The ICJ’s Provisional Measures order as well as the ICC’s investigation into the situation may set the stage for a new era of international law which has more teeth, though the fact that these mechanisms have been selectively ‘fanged’ is an issue that should cause concern. Pakistan would do best to stay out of these power plays and focus on maintaining its historical positions on international law issues.
References
[1] BBC News, Ukraine conflict: What we know about the invasion, February 24, 2022; EJIL:Talk! What is Russia’s Legal Justification for Using Force against Ukraine? Marko Milanovic, February 24, 2022
[2] BBC News, Ukraine invasion: Missiles hit Kyiv as fight for capital looms, February 26, 2022
[3] Vox, Russia’s war in Ukraine, explained, March 6, 2022
[4] See The New York Times, The Roots of the Ukraine War: How the Crisis Developed, March 2, 2022
[5] Office Of The High Commissioner For Human Rights, Ukraine: civilian casualty update, 23 March 2022
[6] The Washington Post, Nearly 1 in 4 people in Ukraine forced out of their homes since Russia’s invasion, March 21, 2022
[7] EJIL:Talk! Aggression against Ukraine: Avenues for Accountability for Core Crimes, Sergey Vasiliev, March 3, 2022; Opinio Juris, Russian Violations of IHL: The ICC is Not the Complete Answer, Melanie O’Brien, March 18, 2022
[8] Ibid; Al Jazeera, Russia-Ukraine war: Moscow announces new ceasefire for Tuesday, March 7, 2022
[9] The Guardian, US formally accuses Russia of war crimes in Ukraine, March 23, 2022
[10] The Washington Post, U.S., European allies freeze ‘Putin’s war chest’ as Russia careens toward economic crisis, February 28, 2022
[11] Council of Europe, Resolution CM/Res(2022)2 on the cessation of the membership of the Russian Federation to the Council of Europe, Adopted by the Committee of Ministers on 16 March 2022 at the 1428ter meeting of the Ministers’ Deputies
[12] The New York Times, The Roots of the Ukraine War: How the Crisis Developed, March 2, 2022; Vox, Russia’s war in Ukraine, explained, March 6, 2022; BBC News, Why is Russia invading Ukraine and what does Putin want? March 4, 2022
[13] The New York Times, Arming Ukraine: 17,000 Anti-Tank Weapons in 6 Days and a Clandestine Cybercorps, March 6, 2022; Vox, Russia’s war in Ukraine, explained, March 6, 2022
[14] BBC News, War in Ukraine: Russia says it may cut gas supplies if oil ban goes ahead, March 8, 2022
[15] EJIL:Talk! Energy Lessons from the Ukraine Crisis, Frédéric Gilles Sourgens, February 24, 2022
[16] Al Jazeera, Latest Ukraine updates: UN urges safe passage for civilians, March 6, 2022
[17] Noam Chomsky Interviewed by C.J. Polychroniou, Outdated US Cold War Policy Worsens Ongoing Russia-Ukraine Conflict, Truthout, December 23, 2021
[18] See for instance, RAND Corporation, Lessons from Russia’s Operations in Crimea and Eastern Ukraine, 2017
[19] Foreign Affairs, International Law Goes to War in Ukraine, Oona Hathaway, March 15, 2022
[20] EconoFact, How Sanction-Proof is the Russian Economy? Christopher Miller, March 17, 2022
[21] ibid.
[22] Noam Chomsky Interviewed by C.J. Polychroniou, Outdated US Cold War Policy Worsens Ongoing Russia-Ukraine Conflict, Truthout, December 23, 2021
[23] Stephen Kotkin, Stalin: Waiting for Hitler, 1929-1941, (October, 2017), Penguin Press
[24] The New York Times, On the Edge of a Polish Forest, Where Some of Putin’s Darkest Fears Lurk, February 16, 2022
[25] United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI
[26] EJIL:Talk! What is Russia’s Legal Justification for Using Force against Ukraine? Marko Milanovic, February 24, 2022; EJIL:Talk! Putin’s War against Ukraine: Mocking International Law, Ralph Janik, February 28, 2022
[27] ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case, 7 March 2022
[28] President of the Russian Federation official website, “Address by the President of the Russian Federation”, 24 February 2022, available at: http://en.kremlin.ru/events/president/news/67843
[29] ICJ, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case, 7 March 2022
[30] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), General List No. 141, International Court of Justice (ICJ), 22 July 2010, Written Statement of the Russian Federation, 17 April 2009, paras 86-88; EJIL:Talk! Recognition, Marko Milanovic, February 24, 2022
[31] Wilson, H. (2003), International law and the use of force be national liberation movements, Oxford: Clarendon Press, p. 154
[32] Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 12
[33] Reference re: Secession of Quebec, [1998] 2 S.C.R. 217
[34] ibid.
[35] ibid.
[36] EJIL:Talk! Belarus is Complicit in Russia’s War of Aggression, Niklas Reetz, March 1, 2022
[37] ibid.
[38] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.1
[39] EJIL:Talk! Belarus is Complicit in Russia’s War of Aggression, Niklas Reetz, March 1, 2022
[40] UN General Assembly Resolution 3314 (XXIX)
[41] EJIL:Talk! At War: When Do States Supporting Ukraine or Russia become Parties to the Conflict and What Would that Mean? Alexander Wentker, March 14, 2022
[42] ibid.
[43] ibid.
[44] Al Jazeera, Russia-Ukraine war: Moscow announces new ceasefire for Tuesday, March 7, 2022
[45] EJIL:Talk! Mercenary or Combatant? Ukraine’s International Legion of Territorial Defense under International Humanitarian Law, Ilya Nuzov, March 8, 2022
[46] ibid.
[47] ibid.
[48] Lawfare, Foreign Fighters in Ukraine? Evaluating the Benefits and Risks, Daniel Byman, March 2, 2022
[49] Reuters, Explainer: Is it legal for foreigners to fight for Ukraine? March 14, 2022
[50] ibid.
[51] Lawfare, Cyber Realism in a Time of War, Ciaran Martin, March 2, 2022
[52] EJIL:Talk! Ukranian ‘IT Army’: A Cyber Levée en Masse or Civilians Directly Participating in Hostilities? Russell Buchan and Nicholas Tsagourias, March 9, 2022
[53] ibid.
[54] ibid.
[55] Lawfare, Cyber Realism in a Time of War, Ciaran Martin, March 2, 2022
[56] The New York Times, Arming Ukraine: 17,000 Anti-Tank Weapons in 6 Days and a Clandestine Cybercorps, March 6, 2022
[57] The New York Times, Arming Ukraine: 17,000 Anti-Tank Weapons in 6 Days and a Clandestine Cybercorps, March 6, 2022
[58] ibid.
[59] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Application and the Request for the indication of provisional measures, 26 February 2022
[60] ibid. paras 8-11
[61] Vox, Russia’s war in Ukraine, explained, March 6, 2022
[62] ibid.
[63] ibid.
[64] EJIL:Talk! Ukraine Files ICJ Claim against Russia, Marko Milanovic, February 27, 2022
[65] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Public Sitting, 7 March 2022
[66] ibid . para. 19
[67] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case, 7 March 2022
[68] See also EJIL:Talk! Russia’s Submission to the ICJ in the Genocide Case; Russia’s Withdrawal from the Council of Europe, Marko Milanovic, March 11, 2022
[69] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Document (with annexes) from the Russian Federation setting out its position regarding the alleged “lack of jurisdiction” of the Court in the case, 7 March 2022
[70] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Order of 16 March 2022, Request for the indication of provisional measures
[71] See also EJIL:Talk! ICJ Indicates Provisional Measures Against Russia, in a Near Total Win for Ukraine; Russia Expelled from the Council of Europe, Marko Milanovic, March 16, 2022
[72] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), Order of 16 March 2022, Request for the indication of provisional measures
[73] International Criminal Court, “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation”, 2 March 2022
[74] Lawfare, The ICC Investigates the Situation in Ukraine: Jurisdiction and Potential Implications, Jaime Lopez, Brady Worthington, March 10, 2022
[75] International Criminal Court, Situation in Ukraine, ICC-01/22
[76] ibid.
[77] ibid.
[78] Article 15(bis)(5), Rome Statute; EJIL:Talk! Aggression against Ukraine: Avenues for Accountability for Core Crimes, Sergey Vasiliev, March 3, 2022
[79] EJIL:Talk! Aggression against Ukraine: Avenues for Accountability for Core Crimes, Sergey Vasiliev, March 3, 2022
[80] ibid.
[81] See for instance, Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) Judgment, ICJ GL No 136, [2008] ICJ Rep 177
[82] Opinio Juris, More Than Rhetoric? International Criminal Justice, Crime Semantics and the Role of the ICC in the Ukraine Conflict, Carsten Stahn, February 25, 2022
[83] Combined Statement And Declaration, Calling For The Creation Of A Special Tribunal For The Punishment Of The Crime Of Aggression Against Ukraine, available at: https://gordonandsarahbrown.com/wp-content/uploads/2022/03/Combined-Statement-and-Declaration.pdf
[84] Opinio Juris, Creating a Special Tribunal for Aggression Against Ukraine Is a Bad Idea, Kevin Jon Heller, March 7, 2022
[85] Lawfare, The World Reacts to Russia’s Invasion of Ukraine, February 24, 2022
[86] UN News, General Assembly resolution demands end to Russian offensive in Ukraine, March 2, 2022
[87] Lawfare, The World Reacts to Russia’s Invasion of Ukraine, February 24, 2022
[88] Opinio Juris, Tracking State Reactions to Russia’s Invasion of Ukraine: A Resource for Research, Alonso Gurmendi, March 4, 2022
[89] Al Jazeera, Diplomats from 22 nations urge Pakistan to condemn Russia, March 2, 2022
[90] VOA News, Pakistan Walks Thin Line Between Russia, Ukraine, March 3, 2022
[91] VOA News, Pakistan Vows Neutrality in Ukraine Crisis, Insists Ties with US on Track, March 6, 2022
[92] VOA News, Pakistan Walks Thin Line Between Russia, Ukraine, March 3, 2022
[93] ibid.
[94] Al Jazeera, Why was Pakistan’s PM in Russia amid the Ukraine invasion? March 3, 2022
[95] Government of Pakistan: National Security Division, National Security Policy 2022-2026
[96] Al Jazeera, Why was Pakistan’s PM in Russia amid the Ukraine invasion? March 3, 2022
[97] ibid.
[98] Vox, Russia’s war in Ukraine, explained, March 6, 2022
[99] Christopher J. Borgen, Law, Rhetoric, Strategy: Russia and Self-Determination Before and After Crimea 91 International Law Studies 216 (2015)
[100] Foreign Policy, The Coming Ukrainian Insurgency, February 25, 2022
[101] Lawfare, Europe After the Ukraine War, Raphael S. Cohen, March 20, 2022
[102] EJIL:Talk! Council at War: Russia, Ukraine and the UN Security Council, Devika Hovell, February 25, 2022
