Can Russia be held responsible for their invasion of Ukraine?

This post is part of a short series of blog posts exploring the recent Russian invasion of Ukraine against the background rules of international law. The posts are based on presentations given at an event on the subject on 7 March that was organised by the University of Bristol Law School’s Centre for International Law. In this second blog post of the series, Dr Kathryn Allinson of the School of Law, University of Bristol, considers the possibility of invoking responsibility against Russia for their invasion of Ukraine. 

Dr. Kathryn Allinson, University of Bristol Law School

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In the early hours of 24 February, President Putin set out his justifications for the use of Russian military force against Ukraine. This was followed by the commencement of aerial strikes across Ukraine and the invasion by ground troops of Ukrainian territory. In this blog, I will explore the role that the international law on state responsibility (as articulated in the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA)) can play in responding to this conduct by Russia.

An internationally wrongful act?

The initial step is establishing that Russia has committed an ‘internationally wrongful act’. First, the conduct in question must be attributed to Russia. This is uncontroversial. The declaration of use of force is made by Putin and it is Russian armed forces engaging in the armed conflict (fulfilling Article 4 ARSIWA that conduct of state organs are attributable to it) and Article 7 ARSIWA ensures that ultra vires acts of a state’s organs can still incur responsibility. Where conduct is taken by separatists of the Donbas region, Russia is held to have control over the separatist movements likely fulfilling Article 8 ARSIWA (see here and discussions of effective control tests under Article 8 here).

Second, there must be a breach of an international obligation of Russia. There has been widespread condemnation of the use of force in breach of Article 2(4) by Russia (see here, here and here). There is no legitimacy in claims of self-defence under Article 51 UN Charter as there is no actual or imminent threat of attack against Russia by Ukraine, but merely perceived threats from Ukrainian ties with NATO. Such pre-emptive attacks have no legal basis and have been widely condemned by the international community in the face of attempts to invoke such arguments in the past. Nor was the declaration of Luhansk and Donetsk as independent States anything other than a unilateral act of remedial secession by Putin undermining claims to be intervening on their behalf as an act of collective self-defence or humanitarian intervention – which would require UN security Council approval (see here). In addition, there are reports of breaches of international humanitarian law as outlined in the Hague and Geneva Conventions. Reports include Russian troops preventing humanitarian aid getting to civilians in Mariupol (in breach of Articles 38, 39, 55 and 71 of the Fourth Geneva Convention (GCIV) and Common Article 3), the obstruction of evacuations of civilians with attacks on humanitarian corridors (in breach of Article 17 GCIV and potentially Article 49 if the forced movement amounts to deportations or forcible transfers), targeting civilians and civilian objects (breaching Article 48 of Additional Protocol I (API)),  indiscriminate attacks (breaching Article 51(5) API) and the use of prohibited weapons (see Article 35 (2) of API prohibiting superfluous injury and the Convention on Cluster Munitions (adopted 30 May 2008)).

Having established attribution and breach, the third question is whether Russia can rely on any circumstances precluding wrongfulness under Chapter V ARSIWA. Article 21 ARSIWA precludes wrongfulness of conduct when it is taken as an act of self-defence. This brings us back to the Russian justifications for the use of force and claims of self-defence that do not stand up against scrutiny. None of the other recognised circumstances precluding wrongfulness applies here.

Countermeasures and lawful responses to the wrongful act

Article 21 ARSIWA clearly states, as does the UN Charter, that individual and collective self-defence by Ukraine (and its allies) is permitted in response to an armed attack by Russia. Furthermore, under Article 49 ARSIWA, Ukraine can take countermeasures against Russia for the on-going international wrongful acts. Countermeasures are intended to induce compliance with international obligations and can amount to the non-fulfilment of international obligations but should not include the use of force.

Article 54 ARSIWA also outlines that it is the right of any State to take lawful measures against the wrongful State if the obligation breached is owed to the international community as a whole (as elucidated under Article 48 ARSIWA). The International Court of Justice case of Barcelona Traction (Belgium v Spain) (amongst others) clearly tells us that the prohibition of aggression is an erga omnes obligation such that all states are permitted to take countermeasures against Russia. Over and above these rights of third States, Articles 40 and 41 ARSIWA further require that when there is a serious breach of a peremptory norm of international law, all states shall cooperate to stop the breach through lawful means and no state shall recognise the situation as lawful. As such, the international community has an obligation to cooperate to end the breaches by Russia (many of which certainly constitute breaches of peremptory norms), as well as the ability to take countermeasures (under either the general rules on state responsibility or lex specialis rules as required by Article 55 ARSIWA).

In light of this, we have seen economic sanctions being implemented globally in response to Russian conduct. The EU has blocked Russian banks from capital markets and the SWIFT payment system as well as banning exports of Russian products. The EU, the US and UK have also banned people and businesses from dealings with the Russian central bank, it’s finance ministry and it’s wealth fund. Germany has put on hold permission for the Nord Stream 2 gas pipeline. But the sanctions have failed to comprehensively ban gas and oil due to the global reliance on Russian supplies though US Secretary of State Anthony Blinken has been in Europe to explore the possibility of banning Russian oil imports. Political resolutions have also been made. The Council of Europe initially suspended Russian voting rights but have now unanimously adopted an Opinion excluding them. The UN General Assembly, with 141 votes in favour, adopted a resolution demanding Russia ends the military operation in Ukraine.

Military responses that seek to bring to an end the situation have also been in evidence. The EU has supplied anti-aircraft and tank missiles to the Ukraine and the US has promised $800 million in aid and military support. However, many States have fallen short of engaging in full collective self-defence on behalf of Ukraine for fear of further escalating the conflict with Russia. For example, NATO has sent extra troops to the region but they will not be engaging troops in Ukraine. Further, a no-fly zone has not been implemented above Ukraine by NATO for fear this could lead to an armed attack between Russia and NATO countries (see here). This has raised discussions as to when engaging in countermeasures short of a use of force could still breach that State’s neutrality, such that they could be subject to countermeasures or even be considered a party to the conflict (see here, here and here). Given that States are obligated to cooperate to bring an end to the breach under Article 40 and 41 ARSIWA and the UNGA resolution has condemned Russia’s action it seems unlikely that measures in support of Ukraine would be deemed unlawful or that conduct by Russia against such States would be viewed as legitimate.

Invocation of responsibility

Finally, there is the question of how to invoke Russia’s responsibility for their internationally wrongful acts. The ARSIWA provides general rules outlining the right of the injured State to invoke responsibility to seek cessation of the conduct and reparations. This can be done by the injured State under Article 42 ARSIWA or by a state other than the injured State if an erga omnes norm under Article 48 ARSIWA has been violated. We have seen over the last few weeks a number of such mechanisms being employed to hold Russia responsible for its breaches of international law (see in general here). Ukraine filed a case before the ICJ with unprecedented support from the international community (see here and here) and the ICJ order of 16 March called on Russia to immediately suspend military operations. On the 1 March, the European Court of Human Rights has granted interim measures in response to a claim by Ukraine of massive human rights violations. Further litigation avenues have also been pursued and these will be explored by Lawrence Hill-Cawthorne in his blog.

In short, the laws on state responsibility provide a framework to establish if Russia has committed an internationally wrongful act and then sets out what the lawful responses are. It enables (and, to a certain extent, requires) Ukraine and the international community to act to bring about an end to the wrongful act and to invoke the responsibility of Russia. Whilst international law is only one in an array of measures to bring an end to hostilities, it has an important role to play in ensuring the responsibility of Russia for its conduct.

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