It is a measure of today’s chaotic world that although the humanitarian and economic consequences of a war against Ukraine have been contemplated, the legal implications have been neglected. However, an invasion of Ukraine by Russia implies a serious violation of international law. Russia has placed over 100,000 troops on the border with Ukraine, an indication that an invasion may be imminent, and will have terrible legal consequences.
“The launch of a war of aggression is a crime that no political or economic situation can justify,” said Robert Jackson, Chief Prosecutor at the Nuremberg Tribunal and member of the Supreme Court of the United States. Aggression against Ukraine could be included in Principle VI of Nuremberg regarding “Crimes against Peace and War,” defined as (i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).”
In the section on “War Crimes” the Nuremberg Principle adds, “Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.”
“Although the Nuremberg Principles lack the binding force of the rules embodied in an international treaty, they are increasingly recognized as rules of customary law that are binding on nations as much as an international treaty,” says Professor Alejandro M. Garro, who teaches comparative law at Columbia University in New York and at the University of Buenos Aires.
The Rome Statute of the International Criminal Court refers to the crimes of aggression as one of the “most serious crimes of concern to the international community,” and provides that the crime falls within the jurisdiction of the International Criminal Court (ICC). The United Nations Charter, in its article 39, provides that the UN Security Council shall determine the existence of any act of aggression and “shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42 to maintain or restore international peace and security.”
In July 2021, Putin asserted in a public letter that Ukraine is historically part of Russia and that it needs to return to the Russian fold. He blamed the Ukrainian authorities for denying the country’s past. The Russian military made that letter compulsory reading for its soldiers. Another reason for Russia’s fueling a conflict with Ukraine: Putin’s shrinking political appeal at home. These reasons, however, don’t justify an invasion of Ukraine, whose citizens love their country and don’t want to be part of Russia. Putin looks like a spurned lover who wants to keep a relationship that has died at any cost.
In addition to over 100,000 Russian troops now on the border with Ukraine, Russia has been conducting nefarious cyberattacks against Ukrainian government sites. These attacks carry the Russian government’s trademark and are part of a policy of intimidation of the Ukrainian people. Russia has also carried out a disinformation campaign aimed at undermining confidence in the Ukrainian government and painting Ukraine as the aggressor in the relationship between both countries. The danger now is that Russia may create a casus belli -justification for war- against Ukraine.
Russia has some valid security concerns regarding NATO’s expansion into her area of influence. However, these concerns should be part of the negotiation with the U.S. and the European Union, and not be used for an attack on a sovereign country. If Russian invades Ukraine, it will be a serious violation of international law. It will also initiate a cycle of violence with no end in sight but of incalculable but certainly ominous consequences for world peace.
