Two Weeks in Review, 28 February – 13 March 2022

There is much to review from this past fortnight. Readers might find the EJIL podcast one of the more accessible ways to hear analysis on various aspects of Russia’s war on Ukraine. The podcast addresses Russia’s legal justifications, the role of the UN Security Council and General Assembly (including the Uniting for Peace UNGA resolution), the ICJ proceedings (note: podcast was recorded before the oral hearings), the ICC investigation, the UN Human Rights Council commissions of inquiry, and the proposed Special Tribunal.

 

In this episode Philippa Webb, Marko Milanovic and Dapo Akande are joined by Rebecca Barber (Asia Pacific Centre for the Responsibility to Protect) and Mike Becker (Trinity College Dublin).

The Situation in Ukraine

ICJ proceedings

Marko Milanovic covered what was known at the time about the case Ukraine filed before the ICJ against Russia. Milanovic analysed the two potential jurisdictional arguments and the likelihood of the provisional measures being indicated:

“I can’t be sure that [the argument that Russia is falsely claiming genocide to start a war is a violation of the Genocide Convention], will work for provisional measures, but if I was a betting man I’d say yes, with a bunch of interesting separate opinions – the Court will likely not want to appear cowardly, and it has enough meat on the bones here to grant the measures.”

Read Milanovic’s initial take on the case here.

Talita de Souza Dias looks at whether Ukraine could bring a case against Russia under another treaty, the International Convention Concerning the Use of Broadcasting in the Cause of Peace, citing a violation of Articles 2, 3 and 4 of the Convention. Read the analysis here.

Matina Papadaki examines the recent jurisprudence of the ICJ on establishing jurisdiction on the narrower grounds of compromissory clauses where there is a ‘context of broader disagreement’. This is important for the Ukrainian case because if the Court characterises the dispute as ‘properly’ being about the violation of the prohibition of the use of force, the Court would be forced to find that it lacked of jurisdiction. Papadaki argues the ICJ has not followed this path in the past and will try to find the object of the dispute in formulation of the dispute proposed by the applicant, i.e. the compromissory clause of the Genocide Convention.

William Schabas, writing after the oral hearings, offers his assessment of the Ukrainian case and turns to the question of whether Article I of the Genocide Convention, the duty to prevent and punish genocide, provides a legal basis for the use of force. Read more about this potential ‘exception’ to the use of force (and the crime of aggression) here. 

Marko Milanovic offers some thoughts on the Russian Federation’s written submission to the ICJ, after they declined to participate in the oral hearings. Milanovic suggests that this submission firms up Russia’s legal justification for the use of force, using self defence as the pretext and denying that allegations that Ukraine has or is committing genocide against Russians or Russian-speakers in Ukraine is linked to its use of force. Milanovic also addresses announcement by Russia that it will withdraw from the Council of Europe.

Frédéric Mégret, addressing the Russian non-appearance before the ICJ, analyses what it means for the case brought by Ukraine and situates this example of non-appearance as part of a trend in contentious and advisory proceedings. Mégret says that Russia’s non-appearance but sending of submissions is ‘an awkward mix of engagement and non-engagement’.

“On its face, this defiance is premised on the idea that a process is so beyond the pale as to not even be worth engaging in. More often than not, however, such defiance has a make-believe quality – the lady doth protest too much. Clearly Russia did not think that the case was so absurd that it did not deserve some cogent written response. So why settle for this in-between position, except perhaps as a way of hedging one’s bets that ultimately betrays the weakness of its case, a fear of losing or, worse, an “insistence that the status of contested behavior should not be governed by international law” at all?”

Alain Pellet resigned as Counsel for Russia before the ICJ and other international tribunals on 23 February 2022. Read Pellet’s ‘Open Letter to my Russian Friends’ here.

Russia’s recognition of the separatist republics in Ukraine

Pavle Kilibarda asks whether Russia’s recognition of the ‘separatist republics’ of Luhansk and Donetsk in Ukraine as independent states was ‘manifestly unlawful’. Kilibarda argues that there is a “need to steer the recognition debate back to its pre-Kosovo modalities” and “to treat recognition as an important legal act subject to strict requirements”.

Marc Weller argues that Russia’s recognition of the ‘separatist republics’ of Luhansk and Donetsk was ‘manifestly unlawful’. Weller suggests the questions must be whether Luhansk and Donetsk ‘meet the criteria of statehood and, if so, was this status achieved through a sufficiently serious violation of international law to warrant the application of the obligation of non-recognition?’

Jus ad bellum analysis

Ralph Janik argues Russia is mocking international law in his post examining Russia’s purported claims of self-defence, accusation of genocide, and the protection of Russian nationals as justifications for its use of force against Ukraine. Read Janik’s analysis here.

Nico Krisch also addresses the topic of the use of force, arguing that powerful actors are able to flout international law and Article 2(4) of the UN Charter. Turning his analysis to ‘Western powers’, Krisch argues:

“in a string of contested military interventions in recent decades – from Kosovo to Iraq, Libya and Syria – Western powers have shunned principled and institutionalized constraints and instead used argumentative openness to create space to pursue their aims, even if these aims may sometimes have been laudable. In very few cases have we seen proper attempts at delineating legal arguments. Far too often have governments either provided no legal justification at all or an obviously contrived one, as in the reference to Security Council resolutions with respect to Iraq or Libya, or the stretched self-defence basis for the killing of the Iranian general, Qasem Soleimani.”

Jus in bello analysis

Emily Crawford looks at reports of civilian involvement in the defence of Ukraine and their position under international law. Crawford argues that the widespread wearing of yellow arm bands and open carrying of arms by volunteers indicates compliance with Article 4A(2) Geneva Convention III and would entitle them to combatant immunity, to actively participate in hostilities, and to POW protections if captured.

Saeed Bagheri evaluates the rights of persons hors de combat to be treated humanely under international humanitarian law after widely shared social media videos of POWs being paraded in Ukraine and statements by the Ukraine’s Special Operations Forces that ‘it will not spare Russian artillerymen in response to their “brutal shelling” of civilians and cities.’ Read Bagheri’s analysis here. 

Ilya Nuzov looks at the call for foreigners to join the International Legion of Territorial Defense (ILTG) to defend Ukraine and explores their legal classification and protections. Nuzov argues those joining the ILTG are not mercenaries and are instead part of the armed forces of Ukraine, giving them POW status upon capture.

Russell Buchan and Nicholas Tsagourias look at reports of a worldwide Ukrainian ‘IT Army’, which potentially as many as 400,000 people have joined, and examine their status under international humanitarian law. Buchan and Tsagourias ask whether the Ukrainian IT army consists of a cyber levée en masse or civilians directly participating in hostilities. Read their analysis here.

Kenneth Chan Yoon Onn evaluates the international law of protected spaces such as humanitarian corridors and argues that a UN Charter Chapter VI peacekeeping mission authorised by the UN General Assembly would be able to supervise and maintain Ukraine’s  humanitarian corridors. Read more analysis on humanitarian corridors here.

Third party responses and responsibility

M. Emre Hayyar addresses whether the 1936 Montreux Convention would entitle Turkey to close the Turkish Straits to Russian warships, but argues the closure would not be effective due to the right of Russian warships to return to their bases under the Convention. Read about the Montreux Convention’s application here. 

Niklas Reetz assesses whether Belarus is complicit in Russia’s war of aggression. Reetz argues Belarus may be responsible not only for assisting Russia with its act of aggression, but that Belarus is committing an act of aggression itself against Ukraine under the definition of Aggression. 

Kai Ambos evaluates whether those states that are supplying arms to Ukraine become parties to the conflict, examining first whether they violate the law of neutrality and second whether Article 51 of the UN Charter on collective self-defence would be a circumstance precluding wrongfulness under the Articles on State Responsibility for Wrongful Acts. Read more about the legal obligations of third states here. 

Anton Moiseienko argues there is no ‘time to waste in considering possible legal and practical responses’ and calls for a range of sanctions, that not only freeze assets but also confiscate them. Read more of Moiseienko’s analysis here. 

International Institutions

Rebecca Barber analyses whether Russia could be suspended from the UN. Although formal suspension appears to be a no-go (Russia would use their veto in any UN Security Council vote on the topic), Barber looks whether it is possible to achieve the same effect as suspension if the UN General Assembly were to refuse to accept the credentials of Russian representatives.

Sergey Vasiliev takes a look at the potential avenues for holding Russia accountable for its act of aggression against Ukraine, including at the International Criminal Court, by the setting up of an ad hoc criminal tribunal, the creation of an investigative commission by UN General Assembly or Human Rights Council, and in domestic criminal proceedings. Read Vasiliev’s analysis here. 

Courtney Grafton and Stephen Bailey evaluate whether Russia can be expelled or suspended from INTERPOL. Read their analysis on the choices facing INTERPOL here.

Carmen Pérez examines the measures adopted by the International Olympic Committee, FIFA, ITF, FIBA, ISU, World Athletics, International Paralympic Committee, and the International Judo Federation in reaction to the Russian invasion of Ukraine. Pérez notes that while the Court of Arbitration for Sport will probably end up addressing complaints by those affected by these measures, sport governing bodies ‘have decided to put the unrivalled allure of sport at the service of the defence of international legality’.

Free speech in Russia

Marko Milanovic looks at the new laws introduced in Russia that punish those who are found to be discrediting the Russian armed forces, calling for sanctions against Russia, and disseminating false information about the armed forces. The Novaya Gazeta newspaper suspended coverage of the conflict, numerous TV stations have shut down, and foreign journalists have stopped reporting due to restrictions on their freedom of expression and even fears over their own safety. Read about the new laws and Milanovic’s analysis of whether they are justifiable restrictions on freedom of expression here. 

Note from the Editors:

We have been receiving, reviewing and publishing an unprecedented number of posts on Ukraine in the past two weeks. We have now covered most legal aspects of the crisis, which looks likely to continue for many more weeks if not months. We will therefore have to resume publishing some posts that are unrelated to Ukraine, many of which have waited for publication quite a while now, in parallel to our Ukraine coverage, which will of course continue. We will publish some such posts today and tomorrow, and next week we will likely have a number of posts on the new issue of the Journal. This of course doesn’t mean we’re back to some kind of business as usual – we most certainly are not – but in the near future we will try to have some space for non-Ukraine-related matters while continuing to prioritize posts that deal with urgent and pressing issues.

Other posts

Gizem Guney looks at the issue of cyber forms of violence against women, which are not addressed by the Istanbul Convention. The Council of Europe monitoring body recently adopted a general recommendation on the ‘Digital Dimension of Violence against Women’. Guney says “It remains to be seen whether the CoE will decide to pursue its fight against [cyber forms of violence against women] on more secure, namely hard law grounds, for example via an Additional Protocol in the future.”

Mirko Forti addresses the ‘instrumentalisation of migration as an instrument of an aggressive foreign policy’ given recent events at the Belarus-Polish, and the regulatory response of the EUto these state-sponsored migratory flows and the ‘weaponisation’ of migrants. Read about the EU’s response to ‘the sponsorship of migration flows as a form of hybrid warfare‘.

Facundo Perez Aznar offers a brief journey into the ‘fascinating life and vast work’ of Argentine diplomat and jurist Carlos Calvo on the 200th anniversary of his birth:

“Two centuries after his birth, Calvo’s legal and political thinking appears to still be relevant. The ideas of equality among states, non-intervention, unity of international law and progress through cooperation need to be recalled more often than wished. But above all, what appears to be appealing about Calvo is the image of a man from the periphery, who witnessed civil wars, foreign interventions, and acts of aggression and, besides all this, managed to put the periphery into the centre of discussion and saw international law as a tool for solving problems and reaching development. In a complex world, Calvo’s life and works serve as a reminder about the power of international law.”

Read more about the contribution of Carlos Calvo to international law here.

Layal Alghoozi analyses the recent Houthi strikes against Abu Dhabi under international humanitarian law, and explores whether it is possible to attribute the attacks to Iran, given it provides funds and support to the Houthis. Read Alghoozi’s analysis here.

 

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