How international law can take its course on Russia's Ukraine invasion: 5 points

Kyiv has filed an application before the United Nations' top International Court of Justice (ICJ) in The Hague, accusing Russia of 'planning genocide' in Ukraine. Chief Prosecutor Karim Khan at the International Criminal Court (ICC) based in The Hague has also launched an investigation, which states, "There is a reasonable basis to believe that the alleged war crimes and crimes against humanity, both have been done."

Meanwhile, on Tuesday, the sixth day of Russia's invasion of Ukraine, a mile-long convoy of Russian tanks and armored vehicles was seen approaching the Ukrainian capital as the fighting on the ground intensified. Russia intensified shelling targeting civilian targets in Kharkiv, Ukraine's second largest city, and casualties continue to mount.

Here we delve into five major questions about Russia-Ukraine war and international law.

Read | Russia-Ukraine crisis: United Nations General Assembly set to reprimand Russia over invasion on Wednesday

Has Russia broken international law?

By waging a war against Ukraine, Russia has broken international law. British-based international law professor Philip Sands said that Russian President Vladimir Putin has broken one of the most important commitments of the Charter.

Geoff Gordon, a senior researcher at The Hague-based Eser Institute for International and European Law, said Russia had violated Article 2(4) of the UN Charter, which prohibits the use of military forces internationally.

Which courts can hear cases related to Ukraine?

Geoff Gordon said Ukraine has applied to bring a case to the ICJ, which will certainly hear a debate on jurisdiction. He said that national courts can also hear cases related to violation of international law. Russia can also be brought to the European Court of Human Rights for human rights violations.

The International Criminal Court has the authority to investigate war crimes committed by individuals on the territory of Ukraine. Ukraine is not a member, but in 2014 it joined the jurisdiction of the court in the wake of Crimea.

Russia however withdrew from the International Criminal Court, so the court would only be able to access Russians who would be arrested on the territory of a state that respects the court's jurisdiction.

Can individuals be held accountable?

The International Criminal Court reserves the right to prosecute individuals accused of some of the world's worst crimes, including genocide, war crimes and crimes against humanity. Individuals can also be tried in national courts. However, the International Criminal Court cannot prosecute the offense of aggression if that country has not accepted the Rome law of the court, which neither Russia nor Ukraine has done. 

Here aggression means 'a planned attack on another state by a political or military leader'. Sands, however, suggested the establishment of a dedicated international criminal tribunal focusing on Russian crimes of aggression in relation to Ukraine.

What could happen next?

The Hague-based ICJ, which adjudicates disputes between countries, will first decide whether it has the right to hear the case. Time limit can also be given. In the ICC, if its judges agree that the court has jurisdiction and evidence in support, then through an investigation, chief prosecutor Khan can issue indictments and prosecutions.

However, the International Criminal Court process can be expedited provided a member country sends the case to court, eliminating the need to obtain the approval of judges.

What will be the effect of this?

Experts agree that it is difficult to answer this question. "The ICJ's decision is final and cannot be appealed, but the top court lacks an excellent enforcement mechanism to give effect to its decisions," Gordon said. Similarly, the ICC also does not have its own police force and is dependent on member countries to make arrests.

"On the other hand, we can assemble a number of more or less coordinated mechanisms designed to punish Russia for waging an illegal war," Gordon said. This includes punishment such as economic sanctions, travel restrictions and cancellation of sporting events."

"The ICJ's decision may play a significant role in any such action in the future, whether as part of a specific legal argument or a public argument about legality," Gordon said.