Responsibility of Russia for Their Invasion on Ukraine

7th February, 2024 - 9:19 am Categories: Legal Issues News & Updates 0 Comments

Primarily, for establishing that Russia has committed an “Internationally Wrongful Act”, the conduct in question must be attributed to Russia in the first place, and secondly, there must be a breach of an International obligation by Russia.^[i] The International law on the responsibility of states is articulated in ARSIWA, which stands for Articles on the Responsibility of States for Internationally Wrongful Acts.

On the first point, the declaration of use of force made by President Putin, and it is the Russian armed force engaging in the armed conflict, attracts the responsibility of Russia under Article 4 of ARSIWA, which states that the conduct of state organs are attributable to it^[ii]; along with Article 7 of ARSIWA that the ultra vires acts of a state’s organ can still incur responsibility.^[iii] Secondly, 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, and there is no legitimacy in claims of self- defense under Article 51 of the 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. 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 (Article 35 (2) of API prohibiting superfluous injury).

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Having established the attribution and breach, the next question is whether Russia can rely on any circumstances precluding wrongfulness under Chapter V of ARSIWA. Article 21 ARSIWA precludes wrongfulness of conduct when it is taken as an act of self-defence.^[iv] 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. Thus, none of the other recognised circumstances precluding wrongfulness applies here.

Finally, the question of how to invoke the responsibility of Russia for their internationally wrongful acts arises. 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^[v] or by a state other than the injured State if an Erga Omnes norm under Article 48 ARSIWA^[vi] has been violated. We have seen over the last few months a number of such mechanisms being employed to hold Russia responsible for its breaches of international law in forms of political and economic sanctions. Furthermore, Article 54 ARSIWA^[vii] 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. The International Court of Justice case of Barcelona Traction (Belgium v Spain)^[viii] 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.^[ix] 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^[x]).

CONCLUSION

The use of force against another sovereign nation is strictly regulated under International Law, and the UN Charter provides the legal framework for the use of force. Use of force only for the purpose of Self defense and authorization by the UN Security council is an exception to the prohibition of the use of force. It is essential to recognize that the use of force can have significant consequences, such as loss of life, displacement, and damage to infrastructure. Therefore, it is crucial to pursue diplomatic solutions whenever possible and to ensure that the use of force is legitimate and necessary to prevent unnecessary harm to civilians and non-combatants.

In context of use of force by Russian federation on Ukraine, the counter measures and lawful responses can be invoked by Ukraine and other nations, as the Use of Force by Russia would come under the category of aggression against the sovereignty and territorial integrity of Ukraine, as well as it would qualify as a breach of international obligation by Russia to refrain from use of force against other nations. 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.

Author: Kalash Jain, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i] Dr. Kathryn Allinson, Can Russia be held responsible for their invasion of Ukraine, University of Bristol Law School Blog, https://legalresearch.blogs.bris.ac.uk/2022/04/can-russia-be-held-responsible-for-their-invasion-of-ukraine/ (Last visited May 5, 2023)

[ii] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 4.

[iii] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 7.

[iv] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 21.

[v] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 42.

[vi] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 48.

[vii] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 54.

[viii] Barcelona Traction, Light and Power Company Ltd. (Belgium v. Spain), [1970] ICJ Rep 3.

[ix] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 40-41.

[x] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Art. 55.