MDX legal expert Dr Giulia Pecorella explains why international courts and the UN Charter will still be crucial in peacefully resolving the conflict
Russia’s invasion of Ukraine is a serious violation of international law and the UN Charter. It is an act of aggression which also involves violations of international humanitarian law as civilian and protected objects have been targeted and attacked, as well as human rights law.
Some fear this is the end of the security system created by the UN Charter more than 75 years ago. This is because Russia, as a permanent member of the UN Security Council, has blatantly violated the cornerstone principle of the Charter. It prohibits the use of force and only allows such military action with the express approval of the UN Security Council on the grounds of self-defence.
In so doing Russia has inevitably damaged the legitimacy of the UN Security Council as the body that according to the UN Charter has got primary responsibility in the maintenance of international peace and security.
But still, from an international law perspective, I would be more inclined to see the bright side even in such dark times as now.
Resolving the war in courts
First, while Ukraine has been under attack and used military force on the grounds of self-defence, they are still determined to rely on peaceful means such as negotiations to solve their dispute with Russia.
The Ukrainian government has moreover initiated diverse proceedings before international courts, showing a remarkable positive attitude towards what the UN Charter considers another method of solving a dispute peacefully, that is, judicial settlement.
They are relying on different courts, including the European Court of Human Rights and the International Court of Justice in The Hague, as well as, they are showing great support to the investigation undergoing within the context of the International Criminal Court.
Scholars usually look at the limits of the system and the flaws of the international courts and tribunals, but I believe it is significant at this stage the Ukrainian government is still seeking to resolve their disputes through judicial settlement acting within the limits of the UN Charter.
At the same time, international courts have reacted very quickly, confirming they are effective and proactive means to resolve international disputes.
Moreover, States have decided to respond to the Russian aggression through acts adopted by different International organisations, including but not limited to, the Council of Europe, the UN General Assembly and the UN Human Rights Council.
This is a very interesting trend that contrasts to what we have witnessed in the last decade, when international organisations and courts have been criticised as useless, biased and ineffective, and several states threatened to leave or actually left them (think about, for instance, Brexit or the Trump Administration’s attitude towards the World Health Organisation during the pandemic, or the International Criminal Court).
Second, the strong condemnation of this aggression by the international community provides further evidence to confirm that under both customary international law and the UN Charter unilateral humanitarian interventions (that is, the use of force for humanitarian reasons by a state, a group of states or an international organisation, such as NATO or the African Union) are not allowed.
Humanitarian intervention and self defence
In the last 20 years, because of the impact of human rights on international law, some states, including the UK, have argued in favour of using force whenever there have been claims of genocide, the use of chemical weapons against civilians, or other war crimes.
Even if a member of the UN Security Council vetoes such actions, the UK believe we should use force on the grounds of humanitarian intervention.
While the rights of the Russian minorities in Ukraine have been often cited by Putin, the reaction of the International community confirms that this won’t be a legal ground to justify the invasion.
Similar considerations could be made in relation to the grounds of so-called preventive self-defence, as it has been interpreted, for instance, within the context of the War on Terror.
In the last twenty years, the US has argued that when states are unwilling or unable to prevent attacks from terrorist groups based within their territory, the use force on the ground of self-defence is allowed, even when the threat to the security of other states is not imminent.
While the legal grounds for Russian intervention have not been clearly submitted, which is possibly another reason to condemn it, among their arguments there is also the need to prevent further threats from a militarised Ukraine. They are calling on Ukraine to demilitarise and this intervention is a way of preventing future threats.
States gets back to UN Charter
However, the way the overwhelming majority of the international community has condemned the actions by Russia shows that international law does not currently provide for a such broad exception to the prohibition to use force.
Of course, these considerations might not be sufficient to put an end to this war or the crimes committed within its context. Yet, the return of international organisations and courts for states to settle international disputes and react to violations of international law is undeniably a very positive element coming out from this hideous situation.
I am also confident that this aggression might encourage all states to reaffirm the principles of the UN Charter and reject any attempts to interpret and apply the law differently (as Russia is doing) and set dangerous precedents which could defeat a system that has survived for more than 75 years.
In this respect, international courts might also play a very significant role.
Dr Giulia Pecorella is Senior Lecturer in Law in the Department of Law and Politics, and PhD Programme Leader for Law. Her most recent work – The United States of America and the Crime of Aggression, which has been published by Routledge – is available to purchase online.