The Case Against Russia Concerning its Invasion of Ukraine
Examining the Rome Statute’s provisions, in light of Russia’s Ukrainian invasion. Does international criminal law criminalize Russia’s actions?
By: Ian L. Courts
Yesterday, February 23, 2022, Vladimir Putin the czarist leader of the Russian Federation initiated an attack on the Ukrainian border, followed by successive missal attacks. Its highly likely Ukraine will fall, the West will wobble, and Russia may largely not suffer any significant repercussions.
However there is a clear indictment and case against Russia over its actions, and a case that largely could be leveled against most of the Security Council members. Russia is in clear violation of international criminal law, and should not only face sanctions but international accountability, including Vladimir Putin and other governmental officials who appeased and/or participated in the decision to invade. My discussion will focus on the Rome Statute of the International Criminal Court, which was adopted by international convention in 1998, and entered force in 2002.
It is time for the international community to take seriously holding powerful nation-state actors accountable under international law for their criminal actions.
Indictment 1: Crimes Against Humanity — Rome Statute Article 7 (k) “inhumane acts”
The Rome Statute which is the criminal statute that largely governs the conduct of countries within the global community, lists several actions that are “a part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” See Rome Statute Article 7 (1). Russia’s invasion of Ukraine is a systematic attack directed at the government, and people of Ukraine that seeks to inflict great suffering.
Subsection (k) of Article 7 defines other “inhumane acts” as
“ acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” Id.
With out question, Russia’s invasion and missal strikes will cause tremendous suffering to the people of Ukraine, and potentially the broader Eastern European community. Moreover, Putin has threatened that the consequences of a strike back on Russia would be “never before seen in history.”
Russia’s actions violates the Rome Statute’s Article 7(k) provisions, and thus are arguably illegal and criminal under international law.
Indictment 2: War Crimes — Rome Statute Article 8 section 2(a)(iv)
Article 8 lists several war crimes that arguably could be charged against Russia, however, I will focus on one, notedly, 2(a)(iv) “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
Russia’s systematic bombing of Ukrainian civilian sites is arguably in violation of Article 8 because these sites are not a military necessity. Moreover, Russia’s intent in invading Ukraine is unlawful, and illegally aggressive thus nullifying his arguments to the contrary.
Indictment 3: Crime of Aggression — Rome Statute Article 8 bis 2(a)
Russia’s crime of aggression is arguably the clearest indictment against the federation and its leader Putin. The crime of aggression is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.” Id. at 2.
Subsection 2(a) further defines aggression as “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof;” Id. at (a).
Russia’s encampment of troops at the Ukrainian border, successive missal attacks, and imminent marching of troops into Ukraine are violations of the Rome Statute. Russia’s intent can be deduced from its actions, it seeks to extend its borders illegally, and subjugate the sovereign-state of Ukraine, and potentially other Eastern European countries.
The Rome Statute is not the perfect instrument of international accountability namely because it is powerless against powerful nations such as Russia, the USA, the UK, China, and the other UN Security Council members. But its existence evidences humanity’s collective determination that actions that target and exact extreme violence on humanity are illegal and should face justice. Russia’s criminal invasion should challenge the global community to reexamine its commitment to justice, and holding the powerful accountable for their criminals actions.