-Astha Samanta
The rule based international law regime developed after the Second World War is currently under tremendous stress due to a proliferation of armed conflicts around the world. Before World War II, large-scale human rights violations such as genocide, torture, rape, and unlawful detention were common and seen as way for the victorious state to demonstrate its control over the vanquished states. The leaders of such states were not held accountable for inhumane and morally reprehensible acts that occurred under their watch. It was only after the Nuremberg trials that a crucial shift in International Law occurred; the Nazi officials were held accountable for their atrocities and the concept of the criminalization of crimes against humanity was established. The trial also played a pivotal role in the development of humanitarian law, which aims to safeguard civilians during armed conflicts. One recent glaring example of human rights violation happens to be the ongoing Russian-Ukrainian conflict; however a successful implementation of the Humanitarian Law in Ukraine so far seems to be a mere dream.
Humanitarian Crises in Ukraine: An Overview
The appalling extent of human rights violations in Ukraine is revealed in a report by the High Commissioner for Human Rights. According to reports, there have been execution-style murders of Ukrainian civilians by the Russian troops in the regions of Kyiv, Chernihiv, Kharkiv, and Sumy; some of these even involved instances of torture before execution. Certain Russian Soldiers have been arrested for indiscriminate killings by the Russian Federation itself. Other alleged instances of violation of human rights and the International humanitarian law include extra judicial tortures, sexual violence, forced displacement, kidnapping etc. The majority of claimed victims were women and girls even though some males and boys have also reported cases of sexual violence.
As per a study conducted by Amnesty International, Russian armed forces and associated armed militia groups are responsible for over 200 instances of arbitrary detention of local government officials, journalists, civil society advocates, and other citizens. Many of these cases may be considered as cases of forced disappearances. Since the start of the armed conflict, freedom of thought, speech, peaceful gathering, and association of the Ukrainian people in the Russian occupied territories have been severely trampled. There are also claims that around 17 bloggers and photographers perished in the fighting. The study goes into depth about how the conflict has affected the rights of Internally Displaced People, disabled people, and elderly people. Russian forces have reportedly used wide-impact explosive weaponry, cluster munitions, or unguided rockets in heavily inhabited areas causing serious damage to civilian infrastructure, including hospitals and schools. Russian forces have also been accused of cutting off supplies of food, water, power, gas, and other essentials, leaving numerous civilians in dire situations.
Russia-Ukraine Conflict from the Lens of International Law
1. Violation of jus cogens norms:
Russian Federation stands accused of indiscriminate attacks on civilian population, sexual violence and forced displacement of civilian and children which constitutes a direct violation of the Geneva conventions. Russian actions in Ukraine are also a flagrant breach of the jus cogens norms. The principle of Jus cogens norms was established in the 19th Century. A principle of customary international Law is based on the consent of the states. If a state rejects any rule of international law, it is not subject to that rule of customary international law and the said rule is binding only on the parties who are a signatory to it. Jus cogens norms on the other hand are also known as peremptory norms because they supersede and render any contrary international accords or other principles of international law as invalid. Jus cogens standards bind all states, whether or not they agree to them. These Peremptory norms are drawn from fundamental international ideals of peace, security and respect for Human life which no state can deviate from.
A state violates jus cogens if it: practices, encourages, or condones,
(a) Genocide,
(b) Slavery or slave trade,
(c) The murder or causing the disappearance of individuals,
(d) Torture or other cruel, inhuman, or degrading treatment or punishment,
(e) Prolonged arbitrary detention,
(f) Systematic racial discrimination, or
(g) A consistent pattern of gross violations or internationally recognized human rights.
Most international courts and agencies recognize that the laws against aggression and crimes against humanity have the standing of jus cogens norms. Thus the aggression carried out by the Russian forces after the capture of Ukrainian forces in the form of alleged genocide of the Ukrainian citizens, inhuman torture, murder, disappearance of the citizens, rape and racial discrimination seems to be indicative of the fact that the rules of jus cogens norms have been broken. The international courts especially the ICJ through its various judgments and advisory opinion from time to time has have tried to specify what would majorly constitute as peremptory norms of international law or the Jus cogens norms.
In the Nicaragua case, the court held that a prohibition on the use of force under article 2(4) of the UN charter is a jus cogens norm. In the Belgium v. Senegal case, the court said that prohibition of torture is also a jus cogens norms. Similarly prohibition of crime against humanity is also a jus cogens norm and that crime of genocide is also a violation of just cogens norm. The instances of the armed conflict and the conflict with the civilians in Ukraine clearly constitute violations of the erga omnes obligations. Another notable judgement which relevant for an evaluation of the justness of Russian actions in Ukraine is the Nicaragua judgment of ICJ wherein the court has stated that states may not recognize the legality of acquisition of any territory resulting from the use of force and that such act would constitute a violation of the Jus cogens norms.
It is therefore undeniable that Russia's armed agression against Ukraine and its forceful occupation of Ukrainian Territories consitutes a flagrant violation of the Jus Cogens Norms of International Law.
2. Misuse of the P5 veto power in the United Nations Security Council
On the political front, Russia has been violating the jus cogens rules and portraying the UNSC as a helpless organization by using its veto authority in the UNSC .From the time Russia started its invasion of Ukraine, it has vetoed a UN Security Council (UNSC) draft resolution supported by 11 UNSC members, which would have ordered Russia to “immediately cease its use of force against Ukraine” and “immediately, completely, and unconditionally withdraw all of its military forces from the territory of Ukraine”. The draft resolution that was put forward by US and Albania that Russia should immediately, completely withdraw its military troops from the Ukrainian territory was supported by 10 out of 15 members of the Security Council. This has again exposed the power imbalance and structural defects in the UNSC, further strengthening the case for comprehensive reforms of the UN organization.
A blatant misuse of the veto powers as a P5 nation state further points to a pressing need for immediate reforms in the United Nations. It has been suggested that the veto power exercised by the P5 nations must be limited in cases violation of jus cogens norms of international law. However, the quest for reforms within the United Nations still remains a mere dream.
CONCLUSION
The ongoing conflict in Ukraine remains a pressing challenge to the viability of the rules of international law. Though Russia is a powerful country but the international community should come together to act as a deterrent against all the atrocities it is carrying out against Ukraine. The international community should come together to foster negotiations between Russia and Ukraine for ending the war without causing any more damage to international peace and security. The author is of the opinion that changes should be made to the current international law regime by limiting the scope of the veto power exercised in the United Nations by the P5 nations. The author will cover the “justness” of Russia’s war from the anvil of the security exceptions provided under the UN charter in the next part of this Article.
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