War of agression in Europe in the 21st century

by | Feb 24, 2023 | Current issues, English, Human Rights Law, Humanitarian Law, International Law

In this blog you will find thematic articles based on current issues and aiming at providing an understanding and short analysis of the topic.

*une version française de cet article est disponible > ici <

A year ago, on February 24, 2022, the Russian Federation started the invasion of Ukraine. This invasion is a violation of the UN Charter[1] and is the start of an international armed conflict and therefore marks the start of the applicability of International Humanitarian Law (IHL – the Geneva Conventions).

UN Charter, Article 2
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.
…
4.  All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

What is striking here is the actual reality of the invasion: How is that possible in 2022 in Europe?

Which leads us to more questions:

Are there no safeguards or instruments that could have prevented this aggression?
Have they not been implemented?
What reactions have been noted at the international and European levels?
What could be implemented to restore the international legal order?

Contents

I. Safeguards and context

A. An effort to create lasting peace through cooperation and legal agreements

In the aftermath of World War II, European countries had a will to consolidate relations between them, especially through cooperation and economic ties, in order to avoid the resurgence of such conflicts.

This process led to the creation of the Council of Europe in 1949, whose main objectives are to promote democracy, human rights and the rule of law, and to the start of the European construction, through the creation of the European Coal and Steel Community in 1951.

At the international level, the United Nations have been established right after the war, in 1945, to promote cooperation and assistance to resolve disputes. As mentioned above, the UN Charter (the founding document of the UN) advocates for the pacific settlement of disputes in its Chapter IV.

Note on the use of violence to resolve conflicts:

Before 1945, this was a “natural” way of resolving disputes and was regularly used between States.

In 1945, States decide this should not be the preferred mean, and enshrine in the UN Charter that “All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered” and that  “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” – UN Charter, article 2 paragraphs 3 and 4.

So, States should refrain from starting armed conflict. But, under some circumstances, the use of violence is still “permitted”:

  1. The UN Security Council may decide to take actions “as may be necessary” (the international law wording to refer to armed actions) in order to “maintain or restore international peace and security.” – UN Charter article 42.
  2. A State may act in self-defense – UN Charter article 51: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

In the matter at stake in this article, Ukraine acted in self-defense against the attack, invasion, aggression of Russia, after the violation of the UN Charter by the latter.

Since two States are fighting against one another, this situation is classified as an international armed conflict by international humanitarian law (IHL). Therefore, IHL now applies and aims at protecting the people impacted by the conflict.

B. Hints and signs opening way for a Russian occupation

Ukraine has been partly annexed by the Russian Empire in 1793, and completely in 1922, after an internal civil war.[2] In 1991, with the fall of the Soviet Union, Ukraine became independent from the USSR but the transition for democracy has not been an easy path.

Less than 10 years ago, Russia invaded and started occupying the Crimean region of Ukraine, leading to its annexation. The Minsk Agreements have been signed between Ukraine and Russia in 2014 and 2015 included interalia a ceasefire and were conducted and implemented under the auspices of the OSCE (Organization for Security and Co-operation in Europe) – click here to learn more about the Minsk Agreement.

The influence of Russia over Ukraine, especially in politics, has led to a “turning from” the European union and “turning on” Russia. Before the 2022 invasion, press articles were already discussing a possible invasion from Russia.

See, for example, the following articles:

With the start of this current conflict[3], a year ago, and the subsequent annexation of territories in the Donetsk, Luhansk, Zaporizhzhia and Kherson regions of Ukraine on 30 September 2022, the mission of the OSCE to implement the Minsk agreements has been put to a hold.[4][5] But this conflict have had – and continue to have – much more dire impacts than that.

II. The impacts of the war at the national, European and international levels

A. Power shift and changing relations…

This armed conflict has influenced lots of changes in Europe, especially the following:

It recalled that armed conflict are not that far from “us” and do not always happen “far away”.

It reinforced the need to be less dependent from Russia – especially energy-wise.[6]
The economic impact have had consequences all over Europe, with many companies leaving Russia or stopping working with/in Russia, international sanctions, and the subsequent inflation.[7]

It strengthened ties between Ukraine and the European Union, with Ukraine obtaining the “candidate country” status to European Union membership.[8]
It also brought back to the forefront the (old) idea of a Europe common defense and the role of NATO. Indeed, Sweden and Finland decided to join NATO in May 2022: “Russian President Vladimir Putin has cited NATO expansion as one of the main reasons for invading Ukraine, but it appears the invasion has had the opposite effect of strengthening the western military alliance.”[9]

Subsequently to the invasion, Russia has been excluded from the Council of Europe in March 2022 – it joined in February 1996[10] – in reaction to the “unjustified and unprovoked aggression” of Ukraine.[11]

B. …in response to the impacts of the war

The motor and core to these changes are the dire impacts of war:[12]

  • Annexation of regions and related displacement of people;
  • Increased risk of human trafficking;[13]
  • Attack against energy infrastructures;
  • War crimes (see more under Sources);
  • Freedom of information and right to peaceful assembly: crack down on independent media in Russia;
  • Right to food / food insecurities;
  • Destruction of cultural heritage sites;[14]
  • Use of mercenaries.[15]

III. What actions have been taken and what can be done?

As discussed above, the European Union and Council of Europe showed support to Ukraine, economically and politically, and Ukraine is applying to EU membership. Apart from the support to Ukraine, what measures have been taken against Russia and the Russian invasion?

A. At the political level

European Union (EU)

The EU repeatedly condemned the war of aggression against Ukraine, as early as 24 February 2022:

“The European Council demanded that Russia:

  • immediately ceases its military actions
  • unconditionally withdraws all forces and military equipment from Ukraine
  • fully respects Ukraine’s territorial integrity, sovereignty and independence
  • respects international law
  • stops their disinformation campaign and cyber-attacks”.[16]

Subsequently, the EU decided on sanctions and restrictive measures, mainly economic, against Russia. On 25 February 2023, the EU adopted its 10th of restrictive measures against Russia.[17]

Moreover, the European Commission has announced, in early 2023, the launch of a center, the International Center for the Prosecution of the Crime of Aggression, that will coordinate the collection of evidence against Russia for the crime of aggression (see more under the Legal level part), to ensure accountability.[18] This Centre will be operational in July 2023. [19]

United Nations (UN)

The United Nations mains organs (the Security Council, the General Assembly and the Office of the High Commissioner for Human Rights – OHCHR) have denounced and condemned the armed actions and invasion of Ukraine by Russia.

Following the invasion, the UN Security Council (UN SC) had a meeting during which it was prevented from “exercising its responsibility to uphold international peace and security” and “exercising its primary responsibility for the maintenance of international peace and security” due to the veto of the Russian Federation. As a result, the General Assembly has decided to resort to a procedural resolution, which “[precludes] the use of a veto by the Council’s permanent members (China, France, Russian Federation, United Kingdom, United States),” to adopt resolution 2623 (2022).[20]

In April 2022, the UN Assembly General (UN AG) decided that if a veto is used by any of the five permanent Member States in the Security Council, the UN GA automatically meets within 10 days so “all UN members can scrutinize and comment on the veto.”[21]

B. At the legal/judicial level

The armed conflict and invasion of Ukraine by Russia is a “crime of aggression” which, as defined by the Rome Statute of the International Criminal Court, “means 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 which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.”[22]

European Court of Human Rights (ECHR)

At the request of the Ukrainian Government, and in application of Rule 39 of the Rule of the Court[23], the ECHR requested interim measures (“urgent measures that aim to prevent an imminent risk of irreparable harm”)[24] and asked the Russian Government to 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, and to ensure immediately the safety of the medical establishments, personnel and emergency vehicles within the territory under attack or siege by Russian troops.”[25]

However, the ECHR’s purpose is to ensure the respect and implementation of the European Convention of Human Rights, and will deal with violations of human rights (and not war crimes).[26]

(You can find here the list of pending cases before the Court.)

International Law and the International Court of Justice (ICJ)

The following case is pending before the ICJ: Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).[28]

The process started back in February 2022 and is ongoing. At the current stage, Ukraine had until early February 2023 to present its conclusions and observations the preliminary objections raised by the Russian Federation.

(this part may be updated depending on developments)

International penal law and the International Criminal Court (ICC)

The International Criminal Court has jurisdiction with respect to genocide, crimes against humanity, war crimes, and the crime of aggression[29] (know as international crimes).

As early as 28 February 2022, the ICC Prosecutor decided to “proceed with opening an investigation.”[30] This is an important move from the Prosecutor as Ukraine is not part of the ICC and cannot seize the Court (to learn more about the ICC, click here). The investigation focus on crimes committed since November 2013 (and the invasion of Crimea).[31]

(this part may be updated depending on developments)

Moreover, the ICC and Eurojust are cooperating on a joint investigation team on international crimes committed in Ukraine.[32]

Ways forward?

While the outcome of this war is still out of reach, one year in, we witness actions taken towards accountability and continued support shown to Ukraine, as well as the incredible resilience of the Ukrainian people. We hope for justice and accountability, through the use of the European and International Courts as well as through the use of universal jurisdiction and, maybe, to the implementation of a dedicated Court, as it has been the case with the International Criminal Tribunal for the former Yougoslavia or the International Criminal Tribunal for Rwanda.

Sources/To know more:

UN Charter https://www.un.org/en/about-us/un-charter/chapter-1

Office of the High Commissioner for Human Rights’ page on Ukraine https://www.ohchr.org/en/countries/ukraine

About the history of Ukraine and its links with the USSR and then Russia

International Criminal Court, Rome Statute https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

About ad-hoc international tribunals https://www.icrc.org/en/document/ad-hoc-tribunals
https://www.icrc.org/fr/doc/war-and-law/international-criminal-jurisdiction/ad-hoc-tribunals/overview-ad-hoc-tribunals.htm (in French)

About international crimes

About the crime of aggression https://coalitionfortheicc.org/explore/icc-crimes/crime-aggression

About war crimes in Ukraine

Analysis of the conflict and/or one-year analysis

Guidelines for documenting international crimes https://www.icc-cpi.int/news/icc-prosecutor-and-eurojust-launch-practical-guidelines-documenting-and-preserving-information

Many other conflicts are ongoing on different parts of the world, to learn more about that, check out the following links:

[1] UNSDG, “Russia’s invasion of Ukraine is a violation of the UN Charter, UN Chief tells Security Council” (5 May 2022) https://unsdg.un.org/latest/announcements/russias-invasion-ukraine-violation-un-charter-un-chief-tells-security-council (consulted on 7 February 2023)

[2] National Geographic, “Russie-Ukraine : les origines de la crise expliquées” (last update 24 Feb. 2022) https://www.nationalgeographic.fr/histoire/russie-ukraine-les-origines-de-la-crise-expliquees (consulted on 20 Feb. 2023)

[3] Permanent representation of France to the OSCE, “The OSCE and Russia’s war of aggression against Ukraine” (last update 31 Jan. 2023) https://osce.delegfrance.org/The-crisis-in-and-around-Ukraine (consulted on 20 Feb. 2023)

[4] OSCE, “Annexation of Ukrainian territories is illegal and a threat to human rights, say OSCE human rights Director and OSCE media freedom Representative” (6 Oct. 2022) https://www.osce.org/odihr/528075 (consulted on 20 Feb. 2023)

[5] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

[6] Le Monde, « Guerre en Ukraine : le plan de la Commission européenne pour se passer des hydrocarbures » russes (8 March 2022) https://www.lemonde.fr/economie/article/2022/03/08/le-plan-de-la-commission-europeenne-pour-se-passer-des-hydrocarbures-russes_6116667_3234.html?xtor=EPR-32280629-%5ba-la-une%5d-20220309-%5bzone_edito_1_titre_3%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[7] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

[8] European council, “European Council conclusions on Ukraine, the membership applications of Ukraine, the Republic of Moldova and Georgia, Western Balkans and external relations, 23 June 2022” https://www.consilium.europa.eu/en/press/press-releases/2022/06/23/european-council-conclusions-on-ukraine-the-membership-applications-of-ukraine-the-republic-of-moldova-and-georgia-western-balkans-and-external-relations-23-june-2022/ (consulted on 23 Feb. 2023)

See more:

https://www.reuters.com/business/aerospace-defense/ukraine-becomes-eu-membership-candidate-battle-east-enters-fearsome-climax-2022-06-23/

https://www.europarl.europa.eu/news/en/press-room/20220616IPR33216/grant-eu-candidate-status-to-ukraine-and-moldova-without-delay-meps-demand

https://ec.europa.eu/environment/enlarg/candidates.htm

https://neighbourhood-enlargement.ec.europa.eu/european-neighbourhood-policy/countries-region/ukraine_en

“On 28 February 2022, Ukraine sent its application for EU membership. On 17 June 2022, the European Commission presented its Opinions […] Ukraine was given a European perspective and granted candidate status on 23 June 2022 by unanimous agreement between the leaders of all 27 EU Member States.”

FR https://france.representation.ec.europa.eu/informations/adhesion-de-lukraine-lue-comment-ca-marche-2022-06-24_fr

Le Monde, “Les Vingt-Sept excluent l’idée d’une adhésion rapide de l’Ukraine à l’Union européenne” (11 March 2022) https://www.lemonde.fr/international/article/2022/03/11/les-vingt-sept-excluent-l-idee-d-une-adhesion-rapide-de-l-ukraine-a-l-union-europeenne_6117011_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220311-%5bzone_edito_1_titre_1%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[9] Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022 (consulted on 8 Feb. 2023)

New York Times, “Ukraine War Accelerates Shift of Power in Europe to the East” (26 Jan. 2023)

https://www.nytimes.com/2023/01/26/world/europe/eu-nato-power-ukraine-war.html (consulted on 23 Feb. 2023)

[10] République Française, Vie publique “Guerre en Ukraine : la Russie exclue du Conseil de l’Europe” (18 March 2022) https://www.vie-publique.fr/en-bref/284440-guerre-en-ukraine-la-russie-exclue-conseil-de-leurope (consulted on 23 Feb. 2023)

Council of Europe, “The Russian Federation is excluded from the Council of Europe” (16 March 2022) https://www.coe.int/en/web/portal/-/the-russian-federation-is-excluded-from-the-council-of-europe (consulted on 23 Feb. 2023)

[11] Council of Europe, War in Ukraine https://www.coe.int/en/web/portal/war-in-ukraine (consulted on 23 Feb. 2023)

[12] Timelines of violations:

Euronews, “Ukraine war: A month-by-month timeline of the conflict 2022-23” (last update 1 Jan. 2023)

https://www.euronews.com/2023/01/30/ukraine-war-a-month-by-month-timeline-of-the-conflict-in-2022

Le Monde, “Guerre en Ukraine” https://www.lemonde.fr/crise-ukrainienne/

[13] Reuters, “COVID-19 cut known human trafficking, but Ukraine war a risk: U.N.” (24 Jan. 2023) https://www.reuters.com/world/covid-19-cut-known-human-trafficking-ukraine-war-risk-un-2023-01-24/ (consulted on 23 Feb. 2023)

[14] UN, “Ukraine: deliberate destruction of culture must stop, say rights experts” (23 Feb. 2023) https://news.un.org/en/story/2023/02/1133762 (consulted on 27 Feb. 2023)

[15] OHCHR, Statement by the UN Working Group on the use of mercenaries warns about the dangers of the growing use of mercenaries around the globe (last update 4 March 2022) https://www.ohchr.org/en/statements/2022/03/statement-un-working-group-use-mercenaries-warns-about-dangers-growing-use

OHCHR, International standards Working – Group on the use of mercenaries https://www.ohchr.org/en/node/3383/international-standards (consulted on 23 February 2023)

ICRC, The Issue of Mercenaries https://casebook.icrc.org/case-study/issue-mercenaries (consulted on 23 February 2023)

[16] European Council, Special meeting of the European Council, 24 February 2022 https://www.consilium.europa.eu/en/meetings/european-council/2022/02/24/?utm_source=linkedin.com&utm_medium=social&utm_campaign=20220224-special-euco&utm_content=carousel (consulted on 23 Feb. 2023)

[17] European Commission, “EU sanctions against Russia following the invasion of Ukraine” (last update 21 Dec. 2022) https://ec.europa.eu/commission/presscorner/detail/en/fs_22_1402 (consulted on 23 Feb. 2023)

European Council, “EU response to Russia’s invasion of Ukraine” https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/?utm_source=linkedin.com&utm_medium=social&utm_campaign=20230225-russia-sanctions-10package&utm_content=visual-card (consulted on 27 Feb. 2023)

[18] VOA, “European Commission to Set Up Center for Prosecution of Russia’s ‘Crime of Aggression’” (2 Feb. 2023) https://www.voanews.com/a/european-commission-to-set-up-center-for-prosecution-of-russia-s-crime-of-aggression-/6945659.html (consulted on 23 Feb. 2023)

[19] JusticeInfo.Net « UKRAINE: LE CENTRE D’ENQUÊTES SUR LE CRIME D’AGRESSION OPÉRATIONNEL EN JUILLET » (17 Feb. 2023) https://www.justiceinfo.net/fr/112533-ukraine-le-centre-denquetes-sur-le-crime-dagression-operationnel-en-juillet.html (consulted on 23 Feb. 2023)

[20] UN, Ukraine – Security Council, 8980th meeting (27 Feb. 2022) https://media.un.org/en/asset/k1x/k1x01ewk24?fbclid=IwAR0nMEu8e_zgJl9RfG4SjxZl5x6X6VDu_rKfQf0xBfUvXyhxttC9urQZTNs (consulted on 23 Feb. 2023)

UN, “Security Council Calls Emergency Special Session of General Assembly on Ukraine Crisis, Adopting Resolution 2623 (2022) by 11 Votes in Favour, 1 Against, 3 Abstentions” https://press.un.org/en/2022/sc14809.doc.htm

[21] Le Monde, « Guerre en Ukraine : les Nations unies adoptent l’obligation de justifier tout veto, sur fond de blocage russe sur l’Ukraine » (last update 27 Apr. 2022) https://www.lemonde.fr/international/article/2022/04/26/les-nations-unies-adoptent-l-obligation-de-justifier-tout-veto-sur-fond-de-blocage-russe-sur-l-ukraine_6123773_3210.html (consulted on 23 Feb. 2023)

United Nations, “UN General Assembly mandates meeting in wake of any Security Council veto” (26 Apr. 2022) https://news.un.org/en/story/2022/04/1116982 (consulted on 23 Feb. 2023)

[22] International Criminal Court, Rome Statute, article 8bis https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf

[23] “Under Rule 39 of the Rules of Court, the Court may indicate interim measures to any State Party to the European Convention on human Rights. Interim measures are urgent measures which, according to the Court’s well-established practice, apply only where there is an imminent risk of irreparable harm.”

[24] ECHR Blog, “ECHR issues interim measures concerning Russian military operations in Ukraine” (1 March 2022) https://www.echrblog.com/2022/03/echr-issues-interim-measures-concerning.html (consulted on 23 Feb. 2023)

[25] European Court of Human Righs, Press release “The European Court grants urgent interim measures in application concerning Russian military operations on Ukrainian territory”, ECHR 068 (2022) (1 March 2022) https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7272764-9905947&filename=The%20Court%20grants%20urgent%20interim%20measures%20in%20application%20concerning%20Russian%20military%20operations%20on%20Ukrainian%20territory.pdf (consulted on 23 Feb. 2023)

[26] Julia Crawford, JusticeInfo.Net, “UKRAINE VS RUSSIA: WHAT THE EUROPEAN COURT OF HUMAN RIGHTS CAN (AND CAN’T) DO” (7 Apr. 2022) https://www.justiceinfo.net/en/90187-ukraine-russia-european-court-of-human-rights-can-do.html (consulted on 23 Feb. 2023)

[27] European Court of Human Rights, Inter-State applications https://www.echr.coe.int/Pages/home.aspx?p=caselaw/interstate&c= (consulted on 23 Feb. 2023)

[28] International Court of Justice, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation) https://www.icj-cij.org/case/182

See also (in French) Le Monde, “Guerre en Ukraine : Kiev plaide contre la Russie devant la Cour internationale de justice” (7 March 2022) https://www.lemonde.fr/international/article/2022/03/07/guerre-en-ukraine-kiev-plaide-contre-l-invasion-russe-devant-la-cour-internationale-de-justice_6116402_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220307-%5bzone_edito_1_titre_2%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[29] International Criminal Court, Rome Statute, article 5.

[30] International Criminal Court, “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: “I have decided to proceed with opening an investigation.”” (28 Feb. 2022) https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-i-have-decided-proceed-opening (consulted on 23 Feb. 2023)

[31] International Criminal Court, Ukraine https://www.icc-cpi.int/ukraine

Le Monde, « Guerre en Ukraine : la Cour pénale internationale s’apprête à enquêter sur les crimes commis sur le terrain » (last update 5 March 2022) https://www.lemonde.fr/international/article/2022/02/28/l-ukraine-saisi-la-cour-internationale-de-justice_6115558_3210.html?xtor=EPR-32280629-%5ba-la-une%5d-20220301-%5bzone_edito_1_titre_4%5d&M_BT=42910528392885 (consulted on 23 Feb. 2023)

[32] Eurojust, “ICC participates in joint investigation team supported by Eurojust on alleged core international crimes in Ukraine” (25 April 2022) (https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-international-crimes (consulted on 27 Feb. 2023)