On 24 February 2022 the Russian Federation started a new era of large-scale aggression on the territory of Ukraine by, inter alia, invading the Ukrainian land, killing civilians, destroying cities and villages, historical and cultural objects, and even making nuclear threats.

Olga Kuchmiienko, Head of International Law Committee of UBA, Nataliia Tuzheliak, Member of the Board of International Law Committee of UBA, International Law Committee of Ukrainian Bar Association[1] together with Yaroslava Franck, International Law expert and other International law experts [2]

While the Ukrainian army and civilians are fighting against the enemy on the ground, the Ukrainian government has also initiated action on the legal front. A lot of efforts are directed to holding Russia and its official accountable and liable for all hostilities with the help of international law.

1. International judicial proceedings against Russia

As of now, proceedings before three international judicial institutions against Russia and its officials have already kicked off. Brief information about them is provided below.

The International Court of Justice

On 26 February 2022, Ukraine applied to the International Court of Justice (the “ICJ”) with a lawsuit against Russia based on the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”).

As a ground for jurisdiction, Ukraine refers to the falsity of Russian claims regarding “acts of genocide” by Ukraine in the Luhansk and Donetsk oblasts of Ukraine, which according to Russia justified a ‘special military operation’ against Ukraine. Moreover, Ukraine claims that Russia itself is committing genocide in the meaning of Article II of the Genocide Convention by intentionally killing and inflicting serious injury to Ukrainians.[3] Given that there is a dispute between Ukraine and Russia related to the Genocide Convention, the ICJ shall have the power to hear the case and decide on the absence/presence of genocide actions as well as on legitimacy of responses to such actions (i.e., whether Russia could lawfully persecute Ukraine for alleged genocide by initiating a military operation).

Together with the lawsuit, Ukraine submitted a request for provisional measures asking the ICJ to indicate that:

1. Russia shall immediately suspend the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine.
2. Russia shall immediately ensure that any military or irregular armed units which may be directed or supported by it, as well as any organizations and persons which may be subject to its control, direction, or influence, take no steps in furtherance of the military operations which have as their stated purpose and objective preventing or punishing Ukraine for committing genocide.
3. Russia shall refrain from any action and shall provide assurances that no action is taken that may aggravate or extend the dispute that is the subject of this Application, or render this dispute more difficult to resolve.
4. Russia shall provide a report to the Court on measures taken to implement the Court’s Order on Provisional Measures one week after such order and then on a regular basis to be fixed by the Court.

On 7 March 2022, a public hearing concerning the request for provisional measures took place in The Hague. Ukrainian representatives presented their oral arguments while Russia decided to ignore the hearing. It is expected that the ICJ will deliver its decision regarding the provisional measures in the upcoming days and proceed with the jurisdictional and merits issues.

The International Criminal Court

On 28 February 2022, the prosecutor of the International Criminal Court (the “ICC”) Karim A.A. Khan QC decided to proceed with an investigation concerning Ukraine. Since Ukraine is not a party to the statute of this Court, the basis for the investigation comprises referrals from ICC member states urging for such investigation (as of today 41 member states have submitted their referrals) as well as two Ukrainian declarations accepting the ICC’s jurisdiction over crimes committed on the Ukrainian territory.[4]

According to Mr. Khan, the ICC will investigate two categories of international crimes covered by the ICC’s jurisdiction:

• war crimes;
• crimes against humanity.

The Office of the Prosecutor has already commenced evidence-collection activities and calls for everyone’s support with such activities. One way to support evidence collection is to submit relevant information through the ICC’s dedicated portal.[5]

The European Court of Human Rights

On 28 February 2022 Ukraine also applied to the European Court of Human Rights (the "ECHR”) to indicate interim measures against Russia in relation to “massive human rights violations being committed by the Russian troops in the course of the military aggression against the sovereign territory of Ukraine”.

On 1 March 2022 the ECHR confirmed that the Russian military action, which commenced on 24 February 2022, gives rise to a real and continuing risk of serious violations of the human rights protected by the European Convention on Human Rights, in particular:

• right to life (Article 2);
• prohibition of torture and inhuman or degrading treatment or punishment (Article 3);
• right to respect for private and family life (Article 8).

Based on such assessment, the ECHR decided to indicate the following interim measures:

• Russia shall refrain from military attacks against civilians and civilian objects, including residential premises, emergency vehicles, and other specially protected civilian objects such as schools and hospitals;
• Russia shall ensure immediately the safety of the medical establishments, personnel, and emergency vehicles within the territory under attack or siege by Russian troops;
• Russia shall notify the Court as soon as they comply with the interim measures.[6]

On 4 March 2022, the ECHR further clarified that the above-mentioned measures cover any request brought by civilians who provide sufficient evidence showing that they face a serious and imminent risk of irreparable harm to their physical integrity and/or right to life. Additionally, the ECHR indicated that Russia should ensure unimpeded access of the civilian population to safe evacuation routes, healthcare, food, and other essential supplies, the rapid and unconstrained passage of humanitarian aid, and the movement of humanitarian workers.[7]

1. List of potential crimes committed by Russia in Ukraine

UBA together with international law experts is constantly working on recording the violations of international law by Russia. The only thing is that the situation develops so fast and Russia commits new and new acts so fast that we get behind with the publishing of our analysis. However, some examples are provided below.

Crime against peace.  Russia’s use of military force in Ukraine can be qualified as a crime of aggression, the waging of illegal war, an idea that originated at Nuremberg as “crimes against peace”.  The crime constitutes a violation of the prohibition on the use of force under Article 2(4) of the Charter of the United Nations.

War crime (target of civilians).  Russia’s targeting of civilians can be qualified as a war crime based on customary rules of international law.

 In addition to its status as established customary law, the principle of civilian immunity has been codified in numerous treaties, e.g., Article 51(2) of Additional Protocol I to the Geneva Conventions, which states:  “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.”

Under IHL, anyone who is not a combatant is considered a civilian. Under Article 50(1) of Protocol I a civilian is defined as someone who is not a member of any organized armed forces of a party to a conflict. The same article adds that "[i]n cases of doubt whether a person is a civilian, that person shall be considered to be a civilian." Under Article 51(3), civilians that directly participate in hostilities lose civilian protection for the duration of such participation.  Reserve or off-duty soldiers are considered civilians unless they take part directly in hostilities, or become subject to military command. Civilians lose their civilian protection if they directly participate in armed hostilities, but only during the period of that participation; they regain civilian status once they are no longer directly engaged in hostilities.

War crime (resorting to perfidy).  Customary international law prohibits killing, injuring or capturing an adversary by resort to perfidy (improper use of military emblems,  insignia, or uniforms in this context)

To penetrate deep into the rear of Ukrainian positions, the Russian  Federation’s forces – apart from using Ukrainian military uniforms – also made use of civilian clothing. This unlawful tactic was supposed to help Russian armed forces mingle among the civilian populations of Ukrainian cities and then attack Ukrainian armed forces when the situation allowed. The Rome Statute of the International Criminal Court qualifies such actions  as war crimes provided that individuals belonging to the hostile nation or army were treacherously wounded or killed.

Murder and Willful Killings.  Alternatively / additionally, Russia’s shooting of civilians can be qualified as murder/willful killings under the 1949 Geneva Conventions.

In all situations of armed conflict, the deliberate killing of civilians is a war crime. Common Article 3 of the 1949 Geneva Conventions prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment, and torture" when perpetrated against persons "taking no active part in the hostilities."  Serious violations of Common Article 3 are increasingly considered to be war crimes and have been defined as such in the statutes of the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda.

Willful killing, that is, intentionally causing the death of civilians, and "willfully causing great suffering or serious injury" when wounding victims, are war crimes.  Persons who commit, order, or condone war crimes are individually liable under international humanitarian law for their crimes.

War crime (target of civilian infrastructure/property).  Russia’s targeting of civilian infrastructure (schools, kinder gardens) can be equally qualified as a war crime.

The principle of distinction between civilian and military targets is enshrined in Article 48 of Protocol I to the Geneva Conventions: “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives, and accordingly shall direct their operations only against military objectives.”

Crime against humanity.  Russia’s targeting of civilians can be equally qualified as a crime against humanity contrary to the Rome Statute of the International Criminal Court.

The statute defines crimes against humanity as the "participation in and knowledge of a widespread or systematic attack against a civilian population," and "the multiple commission of [such] acts...against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." The statute's introduction defines "policy to commit such attack" to mean that the state or organization actively promoted or encouraged such attacks against a civilian population.

The elements of the "crime against humanity of murder" require that (1) "the perpetrator killed one or more persons," (2) "[t]he conduct was committed as part of a widespread or systematic attack directed against a civilian population," and (3) "[t]he perpetrator knew that the conduct was part of, or intended the conduct to be part of, a widespread or systematic attack against a civilian population.” (see, Article 7(1)(a), "Finalized draft text of the Elements of Crimes Adopted by the Preparatory Commission for the International Criminal Court," November 2, 2000, U.N. Document PCNICC/2000/1/Add.2.)

Importantly, under international law, persons who commit, order, or condone war crimes or crimes against humanity are criminally responsible individually for their actions.

Jurisdiction.  The International Criminal Court — a child of the Nuremberg Tribunal — has jurisdiction over some of these crimes (war crimes and crimes against humanity, but not the crime of aggression) committed on the territory of Ukraine.  Russians are subject to its jurisdiction, and being president of the state does not confer immunity.

1. Ways to contribute to the international judicial proceedings

The main and very important way to contribute to the international judicial proceedings is to collect evidence of all crimes that are committed on the Ukrainian territory by Russia. There are many ways to do that.

As mentioned above, the ICC has its own portal, on which everyone can submit relevant information. Apart from that, people can collect evidence using an app called «eyeWitness to Atrocities»[8] created by the International Bar Association or any other platforms recommended by the Government of Ukraine. Regardless of the platform evidence is submitted to, it is important to document them properly. That is why the Ukrainian Bar Association has prepared a brief guide for collecting evidence, which explains what kind of information to collect and how to preserve it.[9]

Finally, the international legal community can contribute to bringing all responsible to justice by analyzing the situation from the legal perspective and publishing findings in reputable journals, publicly condemning violations of international law, and acting as experts in judicial proceedings.

Everyone who wants to help can contact Olga Kuchmiienko, Head of International Law Committee of Ukrainian Bar Association (olga.kuchmiienko@gmail.com) or UBA (komitet@uba.ua) directly with a note “legal expert for UBA”.

***

1. Previous materials of UBA

Ukrainian Bar Association is constantly preparing materials on what has been happening in Ukraine and which rules of International Law Russia has violated with these actions. The short answer is ”almost all”. The long answers were prepared in the form of expert materials that UBA has published and sent directly to the relevant stakeholders in the EU and USA. Also, we still publish all materials to record all violations for the purposes of sanctions applications and current and future International Court proceedings. 

Starting from 21-02-2022 UBA and International Law Committee of UBA and UBA has prepared research about these violations:

1. How Russia managed to violate almost all rules of International Law in one night? Together with Oksana Senatarova (Як РФ встигла порушити майже всі норми міжнародного права за одну ніч?) https://uba.ua/ukr/news/8973/ 
2. Official statement of UBA about warfare of Russia in Ukraine (Асоціація правників України виступила з офіційною заявою щодо військових дій Російської Федерації проти України): https://uba.ua/ukr/news/8974/
3. UBA strongly condemns recognition of the illegal formations in the Eastern Ukraine as Indepent States as well as entering territory of Ukraine with Russian armed forces (Асоціація правників України засуджує визнання Президентом Російської Федерації так званих «ДНР/ЛНР» та введення військ на окуповані території): https://uba.ua/ukr/news/8969/
4. Russia has violated basic rules of the Law of the Sea by blocking Azov Sea and Kerch Straigh: https://www.facebook.com/ubailawcommitee
5. More updates are published here: https://uba.ua/eng/UBA_positions_letters/

• _{[1] Olga Kuchmiienko, Nataliia Tuzheliak, Anna Bukvych, Vladyslav Bandrovskyi, Yuliia Atamanova, Viktoria Ivasechko}

• _{[2] UBA thanks everyone who agreed to help to prepare this analysis for all input, including Polina Sokolovska, Anastasiia Shmatenko}

• _{[3] See press release of the ICJ dated 27 February 2022 No. 2022/4 accessible here - https://www.icj-cij.org/public/files/case-related/182/182-20220227-PRE-01-00-EN.pdf}

• _{[4] See press release of the ICC dated 11 March 2022 accessible via the link https://www.icc-cpi.int/Pages/item.aspx?name=20220311-prosecutor-statement-ukraine}

• _{[5] The portal is available via the link https://otppathway.icc-cpi.int/index.html}

• _{[6] See the press release of the ECHR dated 1 March 2022 No. ECHR 068 (2022).}

• _{[7] See the press release of the ECHR dated 4 March 2022 No. ECHR 073 (2022).}

• _{[8] Information about the app is available via the link - https://uba.ua/ukr/news/9020/?fbclid=IwAR292LOzFSROy3TDoS9Y2QQgr_YbTCC2lXCSM_eEqWDJpmOK4g-bzXx26j4}

• _{[9] The guide can be found via the link (in Ukrainian) - shorturl.at/klrI4}