Federica D’Alessandra addresses the Stubbs Society.
On Tuesday 12 February, the Stubbs Society was delighted to host Federica D’Alessandra, Deputy Director of the Institute for Ethics, Law, and Armed Conflict at the Blavatnik School of Government. She gave a fantastic talk at New College on the role of international law in the war in Ukraine and how it might be used to bring Russia to justice.
There were two main takeaways from the night. Firstly, international law is “not a monolith”. There is no single international court, nor is there one body of international law, which includes but is not limited to, international criminal law and its sister, humanitarian law. Secondly, the crimes relevant to Russia’s attack on Ukraine fall, broadly speaking, into two categories, with the crime of aggression (also known as a crime against peace) on the one hand and war crimes, crimes against humanity, and genocide on the other. When any offences in the second group are committed, the individual perpetrators (i.e., people all the way down the ranks) as well as the leadership are legally responsible, but under international law, only the leadership is liable for the crime of aggression.
Federica began with what international law has to say about the use of force, which states are only permitted to use in self-defence or with UN backing in order to maintain or retore international peace. Violation of this constitutes aggression, which has been a crime since the trials of the Nazis and Imperial Japan that implicates both a state and its leader. What does this mean for the conflict between Ukraine and Russia? To the outside world, Russia is obviously the aggressor. This does not mean, though, that a third country can jump in to defend Ukraine instantly – Ukraine can of course defend itself but for third party involvement it must ask for military backing from other states or organisations like NATO before it can act. Until legal right is established, outside states cannot use force or they become responsible themselves.
Laws govern not just the start of wars but conduct during them too; this body of law is known as jus in bello or International Humanitarian Law (IHL). It legislates methods of war (tactics and weapons), the protection of civilians always and combatants when not in active combat, and aims at limiting the “wanton loss of human life”. As such, sexual violence, torture, summary execution, and particular weapons and tactics are off-limits. In the last year, we have seen these laws ignored time and again, usually by Russia. It is true that violations have not taken place exclusively on one side, and that we are missing lots of data, but that is the broad pattern. From what we can tell, too, Ukrainian soldiers who commit any of these offences are disciplined by their superiors (as the laws of war require); this does not seem to be happening on the Russian side.
Not exclusively but often committed during conflict are Crimes against Humanity, which are grounded in Human Rights Law and include offences like genocide. Russia’s initial justification for attacking Ukraine was, of course, that Ukraine was perpetrating genocide against Russians in Eastern Ukraine. Ukraine sought a judgement from the International Court of Justice about a) whether this was true, and b) whether Russia could use aggression to remedy it. We are awaiting judgement about the first, but Russia was ordered to stop military operations, which evidently has not happened. It has also been suggested that it might be worth looking into whether Russia is carrying out acts of genocide in Ukraine.
We can do little more than speculate about what accountability, and the process of establishing it, might look like in this case. Several proceedings are underway already, and there is a relatively high chance that we will eventually see prosecutions for war crimes, crimes against humanity, and genocide, as there are multiple courts investigating these allegations. With aggression, the situation is harder, because of problems related to jurisdiction and diplomatic immunity. At a national level, both states have jurisdiction over their own soldiers and, additionally, over offences carried out in their territory. However, at a higher level, the International Criminal Court only has jurisdiction over aggression with a referral from the Security Council or consent from Russia, in accordance with the Rome Statute. Politically, though, neither is likely to happen soon.