Russia's Aggression Against Ukraine. State Responsibility, Individual Responsibility and Accountability

Scrutinizing Ukraine’s Application at the ICJ, Ukraine’s Acceptance of the ICC’s Jurisdiction Pursuant to Art. 12(3) of the Rome Statute and the Role of the UN Human Rights Monitoring Mission

Master's Thesis, 2018

120 Pages, Grade: 12


Table of Contents


List of Abbreviations

Chapter I – The Background
1.1) Introduction to the Thesis

Chapter II – Fundamental Norms at Stake
2.1) Core Principles of IL
2.1.1) The Annexation of Crimea
2.1.2) The Conflict in the Donbas
2.2) Summary - The Use of Force in Perspective

Chapter III – Legal Framework and Methodology
3.1) The Three Different Perspectives
3.2) Legal Personality and Responsibility in IL
3.3) The General Procedure
3.4) Sources of IL and Treaty Interpretation
3.4.1) Treaty Interpretation and the ICSFT
3.4.2) Treaty Interpretation and the CERD
3.4.3) Treaty Interpretation and the Rome Statute
3.4.4) The Memorandum of Understanding Between the OHCHR and Ukraine

Chapter IV – Analysis – The Three Mechanisms and Their Tools
4.1) The ICJ and the Statute of the Court
4.1.1) The Principal Judicial Organ of the UN
4.1.2) Basis of the ICJ’s Jurisdiction - Part 1
4.1.3) The Different Procedural Steps During Preliminary Examinations
4.1.4) The Plausibility Test
4.1.5) The Requirement of Urgency
4.1.6) Basis of the ICJ’s Jurisdiction - Part 2
4.1.7) The Advisory Jurisdiction of the ICJ
4.2) The ICC and the Rome Statute System
4.2.1) The Court of Last Resort
4.2.2) The Difference Between a Situation and a Case
4.2.3) The Initiation of a Preliminary Examination
4.2.4) The Remits of the OTP in the Preliminary Examination and Investigation Phase
4.2.5) Ukraine’s Acceptance of the ICC’s Jurisdiction
4.2.6) Preface to Chapter V - Overall Control Test/Effective Control Test
4.3) The OHCHR’s Engagement in Ukraine
4.3.1) The Rationale and Methodology of the HRMMU
4.3.2) HRMMU and Ius in Bello: A Mechanism to Monitor Violations of IHRL and IHL
4.3.3) HRMMU in Perspective to Other Mechanisms of the OHCHR
4.4) Brief Note on Preliminary Results of Chapter IV

Chapter V – Assessment of Ukraine’s Recourse to the Three IL Mechanisms
5.1) The ICJ: Ukraine v. Russian Federation
5.1.1) CERD and ICSFT: The Court’s Order
5.1.2) ICSFT: The Mens Rea of a ‘’Terrorist Act’’
5.1.3) ICSFT: Plausibility Test as a Barrier
5.1.4) ICSFT: Additional Barrier After the Plausibility Requirement - Effective Control Test
5.1.5) ICSFT: Overcoming the Problem of Attribution
5.1.6) ICSFT: Vulnerability Against Plausibility
5.1.7) CERD and ICSFT: Summary and Future Outlook
5.2) The ICC: The Situation in Ukraine
5.2.1) Preliminary Examination: Subject – Matter Jurisdiction
5.2.2) Alleged Crimes in Crimea and Eastern Ukraine
5.2.3) The Overall Control Test as a Barrier?
5.2.4) After the Control Test - Summary and Future Outlook
5.3) The OHCHR: The UN Human Rights Apparatus

Chapter VI – Reflections on The Tools and Barriers of IL
6.1) Results of the First Perspective: ICJ
6.2) Results of the Second Perspective: ICC
6.3) Results of the Third Perspective: HRMMU

Chapter VII – Concluding Remarks



I) Concept Note - UN Human Rights Monitoring Mission in Ukraine


The majority of legal practitioners and liberal democratic states hold the same opinion: Russia’s annexation of Crimea and its support to the rebels in Eastern Ukraine constituted an act of aggression against the sovereign state of Ukraine. Four years have passed since fighting erupted in Ukrainian regions adjacent to Russia leaving thousands of innocent civilians dead, traumatised or homeless. Families have been torn apart. Despite a vast amount of evidence, Russia has continued to deny the facts that it breached international law by annexing a foreign territory and supporting the so-called Donetsk People’s Republic and Luhansk People’s Republic after the ousting of the former pro-Russian president Viktor Yanukovych at the end of the Maidan revolution in February 2014.

Most researchers expounded on the international norms Russia has put at stake and pondered over Russia’s unreasonable legal justifications for its actions in Crimea. The Ukraine crisis has been dealt with extensively both from a political science and legal perspective but only a few scholars discussed the tools international law provide to establish Russia’s responsibility for its wrongful conduct and to hold individuals responsible, suspected of having committed crimes against humanity and war crimes on Ukrainian territory.

Scrutinizing Ukraine’s recent application at the International Court of Justice on the basis of two treaties, the International Convention for the Suppression of the Financing of Terrorism and the International Convention on the Elimination of All Forms of Racial Discrimination, and analysing Ukraine’s acceptance of the ICC jurisdiction pursuant to Art. 12(3) of the Rome Statute, this author aimed to identify the tools and barriers of international law in the context of establishing state and, respectively, individual responsibility. An analysis of the role of the UN Human Rights Monitoring Mission in Ukraine complemented the former two perspectives. Whereas the ICJ and the ICC can enforce international law and hold either states (ICJ) or individuals responsible (ICC), the HRMMU was examined for the purpose of creating accountability for grave violations of international human rights law and international humanitarian law.

This research primarily found out that the tools of international law to hold Russia responsible for its illegal use of force are limited in the specific case of Ukraine at the ICJ. The vague plausibility test of the ICJ sets a high threshold for Ukraine at the preliminary stage of proceedings.

Contrary to the rather grim outlook for Ukraine’s application at the ICJ, the results of the analysis of the second perspective allow for being more optimistic that serious crimes committed by individuals affiliated with the DPR/LPR or the Russian government will not go unpunished. An important question remains whether the OTP will conclude that Russia exercised overall control over the rebels. Even though there is reason to believe that the Prosecutor of the ICC will open an investigation into the situation in Ukraine, one might not expect this to happen any time soon given political and institutional barriers.

The assessment of the third perspective showed that the HRMMU has helped to fill the legal void left by the actions of Russia in Crimea and the rebels in the Donbas. The HRMMU has given victims and their relatives a voice. Although the mission cannot enforce international law, it has proved helpful in gathering evidence and documenting violations of international human rights law and international humanitarian law in its reports, which had already been cited by the ICJ and the ICC.

Keywords: International Court of Justice, State Responsibility, Plausibility Test, International Criminal Court, Individual Responsibility, Overall Control Test, UN Human Rights Monitoring Mission in Ukraine, Accountability

List of Abbreviations

Abbildung in dieser Leseprobe nicht enthalten

Chapter I – The Background

‘’The reality is not that we are about to incorporate a new subject into the Russian Federation but it is rather that we are on the brink of nullifying all our international obligations {…}.’’[1]

1.1) Introduction to the Thesis

Who would have envisaged a permanent member of the UNSC bearing ‘’primary responsibility for the maintenance of international peace and security’’ to annex the neighbouring state’s territory in breach of core UNC obligations in the 21st century?[2] With the Ukraine crisis now in its fourth year, one wonders when to see an end to the daily abuse of people’s human rights in the occupied territory of Crimea, the flagrant crimes civilians are constantly exposed to in the rebel controlled regions of the LPR and DPR and the general lawlessness prevalent in these breakaway territories. Although the Minsk Peace Agreements could halt the most intense shelling that had occurred in the period between Summer 2014 and February 2015, they have not brought back peace to Ukraine with the OSCE Special Monitoring Mission still continuing recording gross cease-fire violations on a daily base.[3] As stated in one of the last reports by the OHCHR, more than 35.000 conflict-related casualties, there under 10.300 killed and 24.700 injured, have been registered since fighting erupted in Eastern Ukraine in April 2014.[4] 2 million people have been displaced.[5] Among the worst tragedies was the downing of a civilian passenger jet with 298 civilians aboard on 17 July 2014.[6]

The call for justice, covered by the terms responsibility and accountability, will be the underlying theme of this thesis. While both terms have been frequently applied in the same context, it should be noted that there is a difference between them: Whereas the concept of responsibility only arises when a state committed an internationally wrongful act or an individual perpetrated a serious crime within the jurisdiction of the ICC, accountability covers broader, also political aspects of answerability.[7] This author intends to primarily focus on legal aspects within the analysis and distinguishes between state responsibility, individual responsibility and accountability, of which the latter covers both the conduct of states and individuals from a rather more political than solely legal perspective.

The decision by the former Ukrainian president Viktor Yanukovych to favour Russia’s 15 billion loan over the Association Agreement with the EU prompted mass protests on the Maidan square in the Ukrainian capital Kyiv. A peaceful demonstration starting with a couple of hundred students on 21 November 2013 developed into a democratic mass gathering of people of all social classes tired of decade long state corruption.[8]

With a multitude of people injured by the special police forces Berkut and 108 dead, the foreign ministers of Germany, France and the special envoy of Russia met with Yanukovych and the opposition leaders on 21st January 2014 to settle the crisis.[9] However, shortly after signing a document, that would reinstate the constitution of 2004, the Ukrainian president fled to Crimea where he was flown in to Russia.[10] Reasoning that the president on the run had ‘’withdrawn from performing constitutional {duties}’’, the Verkhovna Rada decided with a majority of 328 of 447 votes to ‘’remove Viktor Yanukovych from the post of president of Ukraine’’.[11] Turchynov was elected as interim president with a newly formed government. Highly questioning the legitimacy of the vote calling it an ‘’anti-constitutional coup’’, Russia continued to view Yanukovych as the sole democratically elected and acting president of Ukraine.[12]

With violence abating on the Maidan, Russia utilized the moment of instability within the Ukrainian state and infiltrated the Crimean peninsula with ‘’little green men’’.[13] By closing down the roads from mainland, surrounding Ukrainian military bases and occupying media outlets, there were clear signs of a Russian aggression against Ukraine unfolding from 27 February 2014 onwards.[14]

On 1 March the Crimean Prime Minister Aksyonov appealed to Russia for the purpose of ‘’lend{ing} support in ensuring peace and calm in the territory of the Autonomous Republic of Crimea’’.[15] The same day, the Federal Council of Russia entitled the president to legally use force in Ukraine.[16] Adding to the deterioration of the situation, Yanukovych officially called for a Russian intervention to ‘’protect the lives, freedom and health of the citizens of Ukraine’’.[17] In contravention with the Ukrainian constitution, in astonishing pace, a referendum on the status of Crimea was held with over 96% of Crimean voters deciding to secede from Ukraine and to join Russia on 16 March.[18] The majority of UN member states condemned Russia’s decision to incorporate Crimea on 18 March 2014.[19] While de jure remaining Ukrainian, de facto the Crimean peninsula has been governed by Russian authorities since its annexation. The mounting evidence of breaches of IL has not prevented the Kremlin from justifying its actions on the basis of multiple legal arguments.[20] The direct consequences for the Kremlin were i.a. financial sanctions by the EU and the US and Russia’s suspension from the G8.[21]

Violence and lawlessness spread to the Eastern regions of Ukraine, adjacent to the Russian Federation. Especially the Donbas started to call for greater political autonomy.[22] Reminiscent of the Crimean annexation, more and more camouflaged soldiers equipped with heavy weapons crossed the permeable border into Ukraine.[23] Rebel groups united under the name LPR and DPR gathered support both from locals and foreign fighters, mostly Russians.[24] With innocent people illegally detained, abducted and killed by criminal gangs, fighting broke out between Ukrainian troops and the rebels.[25] As of 15th April 2014, an ‘’anti-terror’’ operation has been underway in the Donbas to re-establish order and peace.[26] Until the end of April, Ukraine lost effective control over parts of its territory, there under the cities of Luhansk and Donetsk.[27] ‘’Referendums’’ were held in the self-proclaimed republics with the aim of seceding from Ukraine.[28]

After Ukrainian presidential elections in May (with the exclusion of Crimea and the Donbas), Summer 2014 saw a huge intensification of fighting so that the ICRC officially classified the situation in Eastern Ukraine as a ‘’non-international armed conflict’’.[29] Despite information surfacing that Russia was equipping and financing the rebels with the purpose of destabilizing Ukraine, for want of abundantly clear evidence, this point of crucial relevance for the legal classification of the conflict in Eastern Ukraine remained contested.[30]

Against this background, for the neutral observer it seems that Ukraine has been helpless in finding remedies to stop Russia’s aggression against its territory. The UNSC is blocked by Russia’s veto, Crimea remains occupied by Russia, human rights abuses, i.a. against the Tatar Muslim minority on the peninsula and constant violations of the Minsk II agreement became a normality. It seems we are heading towards another frozen conflict comparable to South Ossetia or Trandsnistria, serving the interest of the Russian government. If one were to believe the critics of IL as e.g. Posner or exponents of realism such as John Mearsheimer, not only the following thesis but also the role of legal remedies in establishing justice for the crimes committed in Ukraine would be put into question.[31] It is therefore important to clarify that this author espouses the idea that IL can play a crucial part in holding perpetrators, be it an individual or a state, responsible for breaches of IL on Ukrainian territory.

As one could witness on various occasions, Russia has not been willing to find a peaceful solution to the conflict through the UNSC.[32] Therefore, one should not expect responsibility and accountability to be established by the UNSC. Alternative panels and methods have to be found.

Scrutinizing three specific cases, which might help sanctioning Russia’s breach of legal obligations, the thesis’s main goal is to understand the tools and barriers of IL that can hold Russia and its sponsored individuals responsible for the actions in Crimea and Eastern Ukraine.

While the analysis of Ukraine’s application at the ICJ intends to address breaches of IL committed by the Russian state, the reference to the ICC serves the purpose of bringing (Russian sponsored) individuals to justice for crimes the ICC might have jurisdiction over.[33] The third perspective will look at the powers of the OHCHR, primarily assessing the HRMMU.[34] Deliberately choosing these three institutional frameworks, it is aimed to cover the most crucial legal aspects of state and individual responsibility and accountability. Although the OHCHR is not an arbitration mechanism and cannot enforce IL, its constantly updated reports on violations of human rights, especially concerning the contraventions of the ‘’right to life’’, might be of crucial relevance as an evidence gathering mechanism which can complement the two courts’ assessments of Ukraine’s allegations.

While most academics pondered on the illegality of the Kremlin’s policies in Ukraine without further elaborating on legal remedies IL provides in this regard[35], only a few scholars expounded on Ukraine’s application at the ICJ and its acceptance of the ICC jurisdiction.[36] However, the latter did neither comprehensively explain the different steps of these arbitrational mechanisms nor did they establish links between the courts’ interpretation of former cases and the present aggression in Ukraine. Moreover, they did not scrutinize the mandate of the OHCHR in this conflict. A broad legal assessment of the ICJ’s, ICC’s and the OHCHR’s role in the context of the Ukraine crisis is therefore required to facilitate the neutral observer’s understanding of how IL can help sanctioning breaches of international norms in Crimea and Eastern Ukraine. For this purpose, the thesis will be scrutinized under the following research question:

‘’Which tools does International Law provide that can hold Russia responsible for its annexation of Crimea and its illegal actions in Eastern Ukraine and what recourse is available to establish responsibility for serious crimes carried out by individuals in Eastern Ukraine and Crimea?’’

Furthermore, dependent upon the above formulated problem, central parts of the thesis will be devoted to answering this sub-question:

‘’What are the legal barriers to establishing state responsibility for beaches of International Law perpetrated by the Russian state and to creating responsibility for serious crimes committed by individuals on Ukrainian territory?’’

Despite the Russian state’s denial of direct military involvement in Eastern Ukraine, this paper rests on the assumption that the Kremlin initiated and fuelled the conflict in the Donbas.[37] The fact that the Russian president confessed that his country’s special intelligence officers had been present in Eastern Ukraine combined with his first denial of instructing ‘’little green men’’ to annex Crimea, makes it difficult not to believe Russia to bear primary responsibility for the actions of the so-called DPR and LPR.[38] Nevertheless, in the course of the analysis it is expected that this crucial assumption might stand in conflict with the legal threshold for the attribution of conduct by non-state actors to states.[39]

The paper proceeds to chapter II, which aims to clarify the core international norms Russia has put at stake with its actions in Ukraine. It will be closely looked at both UN member states reactions and responses from academia.

Chapter II – Fundamental Norms at Stake

2.1) Core Principles of IL

When state officials and scholars apply terms such as illegal use of force or even act of aggression it is helpful to remind oneself of the central norms of IL, namely the prohibition of the use of force and the principle of non-intervention, UN member states, including the founding member Russia[40], have committed themselves to upholding in the UN Charter and various UNGA Res., especially in ‘’Declaration on Friendly Relations’’ and ‘’Definition of Aggression’’.[41]

The prohibition of the use of force, which embodies the ‘’cornerstone’’ of the UNC and is also governed by customary law, is laid down in Art. 2(4).[42] There it is stipulated that ’’ {a}ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’’[43]

Art. 2(4) is solely addressed to states, as it speaks of ‘’international relations’’. It has been characterized as a jus cogens norm every state within the world community is obliged to respect and from which no derogation is permitted.[44] There is broad agreement that the terms ’’territorial integrity’’, ’’political independence’’ and ’’the Purposes of the United Nations’’ narrow down the use of force and render all direct applications of force by states, besides economic pressure, illegal.[45] Not only direct physical force but also its indirect application is strictly regulated.[46] On these grounds, any military support to a rebel group for the purpose of destabilizing another state on behalf of the sponsoring country contravenes the norm of the prohibition of the use of force.[47] This principle was also reiterated in UNGA Res. 2625, which was adopted by consensus.[48] The mere provision of funds to a rebel group, however, would not suffice to establish a breach of the prohibition of the use of force, although it stands in conflict with the principle of non-intervention.[49]

Both in the ‘’Declaration on Friendly Relations’’ and in various ICJ cases the customary norm of non-intervention was confirmed.[50] Together with the principle of the prohibition of the use of force, it is closely connected to the concept of sovereignty, enshrined in UNC Art. 2(1) and also considered to forming part of customary law.[51] The prohibition of intervention pertains not only to the illegal use of force against the territorial integrity of a state but extends to all areas which might impede the decision-making of a sovereign country, be it regarding the ‘’choice of a political, economic, social and cultural system, {or} the formulation of foreign policy.’’[52] If coercive measures such as those described in Art. 2(4) or in the ‘’Declaration on Friendly Relations’’ are applied, then the intervention can be classified as ‘’wrongful’’ as it stands in conflict with the right to free decision-making of a sovereign state.[53]

The consensually adopted UNGA Res. 3314 reiterated the principles of the ‘’Declaration on Friendly Relations’’ and classified aggression as the ‘’most serious and dangerous form of the illegal use of 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.’’[54] This concept of a customary nature is therefore to be interpreted even narrower than the prohibition of the use of force as various preconditions laid down in Art. 3 have to be fulfilled before recourse to force may amount to an ‘’act of aggression’’.[55] Although Art. 5(2) indicates that a war of aggression is a crime against international peace on which grounds international responsibility could be established, it took the world community more than 40 years to agree on an international mechanism to this effect.[56] Drawing on the definition of an act of aggression of UNGA Res. 3314, from 17 July 2018 onwards the ICC will have jurisdiction over the crime of aggression if it could be established that a leader of an ICC member state has committed an act of aggression of such ‘‘gravity and scale’’ that it amounts to a ‘’manifest violation of the UN Charter’’.[57] In the current understanding of the Kampala definition, the Russian president would not be able to be prosecuted because Russia is not a member of the ICC and the principle of nationality and territoriality limit the jurisdiction of the court.[58] Another reason why this thesis will not deal with the crime of aggression, is owed to the fact that a crime of such a magnitude cannot be retroactively investigated by the ICC.[59] The options of a referral by a State or proprio motu investigation by the Prosecutor, allowable in regard to genocide, crimes against humanity and war crimes, were explicitly excluded.[60]

Two exceptions to the prohibition of the use of force are provided for by the UN Charter: (1) Collective actions taken by the UNSC under a chapter VII resolution and (2) individual or collective self-defense pursuant to UNC Art. 51 in case of an armed attack against a member of the United Nations.[61]

Averting large-scale human suffering by force might be considered a third option to legally circumvent the prohibition of the use of force under customary law, although the legal base for humanitarian interventions remains highly contested.[62] By the same token, in spite of the fact that ICJ case law allowed interventions at the request of the government, neither invitations by regimes that lost effective control over its people nor requests by a local authority cannot grant permission for the external use of force in the territory of a sovereign state under IL.[63] Talmon corroborates this thought positing that ‘’recognition by the intervening State alone usually cannot suffice to legalize or justify an intervention.’’[64]

2.1.1) The Annexation of Crimea

Against this legal background, Russia’s actions in Crimea would clearly attest to a breach of the prohibition of the use of force and the principle of non-intervention with none of the exceptions to the use of force being applicable.

Since Russia justified its military intervention in Crimea with reference to an official invitation by the (former) Ukrainian president Yanukovych and the Prime Minister of Crimea, any discussion on whether Russia’s resort to force would be subject to the principle of self-defence is rendered obsolete.[65] But even if such an argument was put forward by the Kremlin, one needs to clarify that neither was an assault planned by Ukraine nor did an armed attack against Russian territory or the Black Sea Fleet in Crimea occur.[66]

It should also be bore in mind that Russia’s covered operation in Crimea was not only in clear breach of the UN Charter and customary law but also of obligations laid down in other multilateral and bilateral instruments.[67] For example, the Black Sea Fleet Status of Forces Agreement (SOFA) allowed Moscow to deploy up to 25000 soldiers in clearly defined areas in Crimea and lease military ships until 2042 after the Kharkiv Accords prolonged the period in 2010.[68] The presence of camouflaged and heavily armed Russian soldiers on the streets of Crimea or the annexation of the Crimean peninsula itself to which the Russian servicemen heavily contributed, i.a. with blockades of Ukrainian military facilities and critical infrastructure, clearly contravened the conditions stipulated in Art. 6(1) of the agreement.[69] Therein it is stated that “Military units shall {…} respect Ukraine’s sovereignty, obey its legislation and refrain from interference with Ukraine’s domestic affairs”.[70]

A further Russian infringement can be identified in Art. 3 of the Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation, specifying in 1997 that both parties undertake to ‘’build their relations on the basis of principles of mutual respect of sovereign equality, territorial integrity, inviolability of borders, peaceful settlement of disputes, non-use of force or threat of force, including economic and other forms of pressure, non-interference into internal affairs{…}’’. [71]

Placing their signature under the non-legally binding Budapest Memorandum, the UK, the US and Russia ‘’ reaffirm{ed} their commitment to Ukraine, in accordance with the principles of the Final Act of the Conference on Security and Cooperation in Europe, to respect the independence and sovereignty and the existing borders of Ukraine’’ and pledged to ‘’refrain from the threat or use of force against the territorial integrity or political independence of Ukraine’’.[72] With the annexation of Crimea, Russia broke the security assurance given to Ukraine in 1994 after the voluntary disposal of their nuclear capabilities.[73] Contrary to the common understanding of Art. 6, Russia has not been willing to consult with the UK, the US and Ukraine as it denied having broken any clause of the agreement.[74]

Of no less importance is the breach of another non-legally binding document, to wit, the Helsinki Final Act. In 1975 thirty-five countries, including the Soviet Union affirmed the principles of the inviolability of borders, territorial integrity and non-interference in domestic affairs.[75]

Together with the UN Charter, all previously referred documents were also recalled by UNGA Res. 68/262, which was approved by 100 states with 58 abstentions and 11 dissenting votes.[76] Since Russia vetoed any attempt of resolving the crisis in Crimea in the UNSC, the UNGA provided the next best platform for Ukraine to condemn Russia’s aggression by the UN member states.[77] Although its resolutions are not binding, practise has shown that the UNGA has served as a highly important panel to debate questions of self-determination.[78] The voting outcome and discussions by states around the resolution can indicate whether an act that altered international borders was considered legitimate by the world community or not.[79]

Looking into Art. 3 of the ‘’Definition of Aggression’’, three conditions can be identified on which the argument can be made that Russia committed an ‘’act of aggression’’. Although the threshold for an act of aggression remains contested, the scale and effect of Russia’s military operation in Crimea exceeded the established criteria of a ‘’mere frontier incident’’ or ‘’less grave forms of the use of force’’.[80]

Pursuant to Art. 3(a), one can speak of (1) a (covered) ‘’invasion {…} by the armed forces of {Russia} of the territory of {Ukraine}’’, (2) a ‘’military occupation’’ by Russia of Ukrainian territory and (3) even an ‘’annexation’’ of the Crimean Peninsula by Russia.[81] An invasion is to be understood as an ‘’instance of invading a country or region with an armed force’’.[82] This is clearly applicable to the situation in Crimea. Military occupation and annexation have occurred without doubt as Russian soldiers acted outside the international legal framework by providing military assistance to the Crimean self-defense force, by accepting the result of the referendum and, consequently, approving the request of the Crimean authorities to be incorporated into the Russian Federation.[83] The ‘’referendum’’ and the subsequent actions also qualify as an annexation on the grounds that the Ukrainian constitution prohibits any alteration of the territorial status without an ‘’All-Ukrainian referendum’’.[84]

Both UNGA Res. 71/205 and 72/190, adopted by 70 votes in favour with 26 against and 76 or, respectively, 77 abstentions, ‘’condemn{ed} the temporary {…} occupation of part of the territory of Ukraine {…} by the Russian Federation, and reaffirm{ed} the ‘’non-recognition of its annexation’’.[85] These documents also recalled the initial UNGA Res. 68/262, which firstly omitted classifying Russia’s acts as an occupation and annexation.[86] UNGA Res. 68/262 determined that the referendum had ‘’no validity’’ and ‘’cannot form the basis for any alteration of the status of {..…} Crimea’’.[87] Its last paragraph that ‘’calls upon all States {…} not to recognize any alteration of the status of {…} Crimea’’ embodies the principle of non-recognition of a serious breach of IL.[88]

Given the fact that the preamble of UNGA Res. 68/262 also ‘’recall{ed}’’ Art. 2(4), one could confirm that a peremptory norm had been broken.[89] Art. 41(2) of the Articles on State Responsibility calls on states to abstain from recognizing any situation arising in the context of the breach of a jus cogens norm and prohibits lending support for sustaining such a situation.[90] It is backed by state practise with countries rejecting the independence of Rhodesia, Iraq’s annexation of Kuwait or the South African occupation of Namibia.[91]

As Russia helped Crimea to secede and later incorporated the peninsula in contravention of the prohibition of the use of force, these actions could be classified as a breach of a norm universally applicable to the world community. On the other hand, since a considerable amount of countries abstained and some even voted against, it is difficult to uphold the assumption that the community as a whole considered the annexation of Crimea a breach of a jus cogens norm. Therefore, the rather average support for such an essential resolution adds to the controversy around the applicability of a jus cogens norm in IL.[92]

Russia’s blockades of Ukrainian ports, i.a., by deliberately sinking a Russian military vessel testifies to another aggressive act falling into the scope of Art. 3(c) of the ‘’Definition of Aggression’’.[93] One should consider the breach of the bilateral agreement on the status of the Black Sea in a similar vein, as it infringes upon Art. 3(e) where it is determined that a mandate provided to a foreign country to deploy troops on another state’s territory should not be overstepped.[94]

Having gone through the list of Art. 3, the conclusion can be drawn that Russia’s actions in Crimea constituted an act of aggression. Various legal scholars and states would confirm this.[95] Putin’s biased reasoning that any previously concluded bilateral treaty with Ukraine became invalid because the Maidan revolution created ‘’a new state with which {Russia has} signed no binding agreements’’ does not find any support in IL.[96] It depicts rather a political concept, which the Russian president tried to legitimize Russia’s illegal actions with.[97] Nevertheless, the majority of Russian academia and a few Western scholars have supported the Kremlin’s position that the people in Crimea were allowed to determine their own future by a referendum.[98]

According to Crawford, “secession is neither legal nor illegal in international law, but a legally neutral act the consequences of which are regulated internationally.’’[99] In the case of Crimea, the use of force in assistance to self-determination would be subject to two conditions: The people of Crimea would only be granted the permission to hold a referendum in conformity with IL, (1) if Ukraine would have oppressed the Russian majority and denied their political rights in Crimea.[100] The imposition of the language law, which was shelved by the Ukrainian authorities, would certainly not suffice to claim that the Russian people had been oppressed.[101] (2) Secondly, one needs to take the opinio juris of UN member states into account.[102] By reiterating the ‘’Declaration on Friendly Relations’’, UNGA Res. 68/262 attests to the fact that the Crimean referendum was in breach with the principle of self-determination.[103]

As a last point, drawing upon the ICJ’s advisory opinion on the legality of Kosovo’s declaration of independence, Putin’s argumentation does not render a referendum staged in the context of an illegal use of force legal.[104] Putin’s recourse to the highest court’s rationale therefore is to be seen in the light of the principle ex injuria, ius non oritur. As elaborated in the course of the previous paragraphs, the recognition of the alteration of international borders that was preceded by an illegal use of force is prohibited in IL.

2.1.2) The Conflict in the Donbas

While the Crimean annexation undoubtedly comprises an international dimension, the characterization of the conflict in Eastern Ukraine has been more complicated. So far, a legal distinction has been made between the occupation of Crimea, which is directly attributable to the state of Russia and therefore classifies as an ‘’international armed conflict’’, and the situation in the Donbas, where the ‘’level of organisation of {the} armed groups’’ LPR and DPR has confirmed that they are ‘’parties to a non-international armed conflict’’.[105] Although Putin alluded to the presence of Russian intelligence services in the Donbas, the Kremlin has constantly denied any direct military involvement.[106] A vast amount of evidence such as the capture of Russian paratroopers in the territory of Ukraine or satellite imagines proving the incursion of Russian weapons and soldiers into Russian territory, suggests the opposite.[107] It can be deduced from the opinion of the US, UK, France, Ukraine, Lithuania, Australia and New Zealand, that Russia’s support for the rebels in the Donbas would qualify an aggression within the meaning of UNGA Res. 3314, Art. 3(e) and give rise to international responsibility.[108]

However, it should be bore in mind, that the evidence at hand might not suffice to make Russia responsible for its support to the rebels. Looking into the judgement by the ICJ in the Nicaragua case in 1986, one can understand the rationale behind Russia’s strategy of denial. The Court decided that the US could not be made liable for all actions of the Contras whom the US supported in the fight against the Nicaraguan government.[109] The financing, organizing, training, supplying, equipping and planning of the Contras’ operation by the US did not trigger the ‘’effective control’’ threshold, set out by the ICJ.[110] Whether it is true that Russia’s denial of facts will help preventing the ICJ from making Russia responsible for its support to the DPR and LPR will be analysed in chapter V.[111]

For the sake of clarity, only if the conduct of the pro-Russian insurgents can be clearly attributed to the Russian state, the conflict in the Donbas would become international. For now, one has to deal with two different legal situations: an international armed conflict in Crimea in parallel to a non-international armed conflict in Eastern Ukraine.[112] The legal difference inherent in both classifications will become clearer during the analysis of the ICC’s role in the crisis.

The most crucial document for the resolution of the conflict in the Donbas presents UNSC Res. 2202 that ‘’endorse{d}’’ the ‘’Package of Measures for the Implementation of the Minsk Agreements’ adopted by 15 yes votes of all UNSC members states after the heaviest fighting period in Eastern Ukraine.[113] It is worth mentioning that the UNSC therein ‘’welcome{d} the Declaration by the President of the Russian Federation, the President of Ukraine, the President of the French Republic and the Chancellor of the Federal Republic of Germany in support of the “Package of measures for the Implementation of the Minsk Agreements”.‘’[114] The Declaration clearly states that the President of Russia and the other three respective leaders ‘’reaffirm their full respect for the sovereignty and territorial integrity of Ukraine.’’[115]

2.2) Summary - The Use of Force in Perspective

With hundreds of wars being led by states after the adoption of the UN Charter, it should be stressed that the regulation of the use of force constitutes one of the most contentious areas of IL.[116] States have been reluctant to condemn their own recourse to force and have defended their actions on different legal grounds.[117] The fact that force has been illegally employed by permanent members of the UNSC various times before the Crimean annexation, however, should not relativise Russia’s illegal conduct. ‘’The wrongdoing of one state does not justify the wrongdoing of another.’’[118]

The annexation a sovereign state by a permanent member of the UNSC in the 21st century can never be considered legitimate and should not be recognized by the international community. Although 69 of 169 states participating in the voting on UNGA Res. 68/262 did not approve the resolution, so far, only a few states such as Syria, North Korea, both known for its gross violations of IL, or Afghanistan and Venezuela have actually recognized the Crimean annexation.[119] On the opposite, the largest majority of UN member states have continued the soft coercive policy of non-recognition and most Western democracies have also imposed economic sanctions.[120] The fact that the tool of non-recognition has been applied bears witness to the gravity of the situation in Ukraine.[121] As cited by the ILC, according to Tomuschat, non-recognition forms ‘’an essential legal weapon in the fight against grave breaches of the basic rules of international law’’.[122]

Before the Ukraine crisis, Russia had constantly employed the argument that Kosovo’s independence was illegal under IL.[123] Amid the Crimean referendum, however, Russia suddenly changed its reasoning by drawing a parallel between Kosovo and the Crimean declaration of independence.[124] Since Kosovo has been recognized by 112 states today, this analogy is wrong.[125] The amount of states affirming its statehood and the absence of any resolution similar to UNGA Res. 68/262 corroborate the thought that a general policy of non-recognition has not been applied in the case of Kosovo and therefore a grave breach of IL cannot be identified in Kosovo. Different to Russia’s understanding, one is allowed to conclude that Russia’s annexation of Crimea has to be seen in the light of an attempt to abrogate the most fundamental principles the international system has actually been build upon.[126]

The crucial question remains unanswered how Russia can actually be hold responsible under IL as all previously listed breaches of treaties and customary law in this chapter do not provide Ukraine recourse to an international arbitration mechanism. In this regard, Grant is right that although international norms are clearly stipulated in legal documents, there might be no direct mechanisms to enforce them and fully prove the perpetrator’s guilt, especially in cases where an aggressor invaded the territory of another sovereign state.[127] It is explained by the fact that powerful states are reluctant to consent to treaties that allow International Courts to intervene into a state’s sovereign decision-making and overrule national Courts with regard to such imminent questions as the application of the use of force.

This thesis, however, will try to demonstrate that there are distinct mechanisms in IL that might enable Ukraine as a state to vindicate its rights and those of its citizens, which were infringed by Russia and its proxies in Eastern Ukraine, at an International Court.

Chapter III – Legal Framework and Methodology

3.1) The Three Different Perspectives

For the purpose of answering the research and sub-question, three different legal perspectives will be scrutinized:

In chapter IV and V, it will be closely looked at (1) Ukraine’s application at the ICJ, (2) Ukraine’s referral of a situation to the ICC and, as a supplementary mechanism, (3) the role of the HRMMU will be put under scrutiny.

It is worth stressing here that the focus is set on real-life sub-themes that represent three possibilities of addressing Russia’s illegal actions in Crimea and the Donbas from the viewpoint of IL. Since Ukraine has taken recourse to these mechanisms, it is also this author’s goal to assess both the prospect of their success and their limitations in holding Russia responsible and, respectively, accountable for its conduct in Crimea and Eastern Ukraine. The temporal scope is primarily limited to illegal actions taken by Russia at the end of February 2014 in the context of the Crimean annexation until present day in the war in the Donbas. Hence, the ICC’s examination activities regarding the Maidan crimes will be left out. Whereas the analysis of the first perspective is confined to the preliminary stage of the proceedings at the ICJ, the second analytical point of view is limited to the preliminary examination activities of the OTP at the ICC. Nevertheless, in both cases this author aims to provide a future outlook, where the further procedure of each Court will be briefly assessed with a view to cover the most relevant aspects in regard to the research and sub-question.

As pointed out in chapter I, an important distinction should be made between the terms ‘’responsibility’’ and ‘’accountability’’. Whereas the former legal concept will play a crucial part in the analysis of Ukraine’s application at the ICJ and its referral of a situation to the ICC, the third perspective will primarily cover questions of accountability.

Although one could have focused on individual complaint procedures[128] or other legal platforms, the state of Ukraine tries to hold Russia responsible at[129], given the limited space available, efforts will be devoted to scrutinizing only the three mentioned mechanisms. The thesis will also leave out the question of ‘’universal jurisdiction’’ as such and will not consider possible national proceedings.[130]

3.2) Legal Personality and Responsibility in IL

On the international plane one can identify multiple actors: states, corporations or natural persons (individuals). This thesis is limited to the conduct of states and individuals. It is predicated on the understanding that not only states but also individuals are granted the status of persona under IL.[131] This is especially pertinent to the area of International Criminal Law. Without the crucial concept of personality, states could neither take legal action nor would institutions such as the ICJ or the ICC be able to adjudicate legal cases. Legal personality does therefore determine both the legal rights and responsibilities of a subject under IL.[132] Whereas in private municipal law the legal subjects are unambiguously defined so that their rights are also clearly enforceable, different suggestions have been put forward by scholars in the debate on how to extend legal personality beyond states in IL.[133]

It has become more and more apparent that IL has evolved from a state-centric system to one, which does also afford rights to individuals and, more importantly for this thesis, confer responsibility on them.[134] Different from public international law, international criminal law has developed to such a degree that also illegal conduct of individuals may give rise to responsibility under IL.[135] The evident example here is the establishment of the ICC. On the one hand, nationals of countries that ratified the Rome Statute of the ICC are now also protected from genocide, crimes against humanity, war crimes and the crime of aggression committed by individuals on the international level, on the other, given the principle of nationality and territoriality, nationals of parties to the ICC and those who perpetrated the first three mentioned crimes on the territory of a state party to the ICC, can be made liable for the most serious crimes under IL.[136]

With that said, all issues of responsibility deal with the rules of consequences of breaches of IL. A distinction is made between breaches of international obligations owed to individuals and those pertaining to states. Norms related to individual, criminal responsibility can be inferred from the Rome Statute of the ICC. For the interpretation of breaches of IL committed by states it is rather more complicated. After four decades of codification, the ILC ’’commend{ed the Draft Articles on the Responsibility of States for Internationally Wrongful Acts} to the attention of Governments without prejudice to the question of their future adoption or other appropriate action’’.[137] In the following years, three other UNGA resolutions (Res. 59/35, Res. 62/61, Res. 65/19) had been endorsed in a similar vein.[138] This proves that the concept of state responsibility is a highly sensible and controversial issue within IL. It also implies that, so far, no general treaty has been agreed on that sets out criteria on how to interpret the consequences of breaches of IL committed by the prime subjects of IL. Nonetheless, despite the soft law, non-binding character of the Draft Articles, certain principles in the document have been reiterated by the ICJ and were considered to be forming part of customary law after their conclusion.[139]

Against the aforementioned background, James Crawford, the former Special Rapporteur on the subject of state responsibility who was responsible for the last drafting process of the Articles, holds the opinion that they have been ‘’very widely approved and applied in practise’’.[140] It is not ruled out that the status of other principles in the document could be elevated in the future. Measures necessary to that end are (1) state practise and (2) opinio juris. Generally, the ‘’Draft Articles’’ are classified as a legal source of a secondary nature which ‘’determine whether obligation{s contained in treaties have} been violated and what should be the consequence of the violation.’’[141]

The fundamental principle of the concept of state responsibility is enshrined in Art. 1 of the ‘’Draft Articles’’ stipulating that ‘’{e}very internationally wrongful act of a State entails the international responsibility of that State’’.[142]

Art. 2 of the ‘’Draft Articles’’ lays out two conditions on which a wrongful conduct either out of action or the inaction of a state may give rise to state responsibility: (1) It is attributable to the state under IL and, (2) it contravenes an international obligation of the State.[143] Only if both elements have been proved, can a ‘’wrongful conduct’’ be established.[144] It should be said that one of the goals of the thesis is also to scrutinize the legal elements that need to be present before Russia can be held responsible for its actions in Ukraine by the ICJ.

In the commentaries on the Draft Articles, the ILC elaborated that the parameters of a ‘’wrongful conduct’’ had existed in IL before Art. 1 had been written.[145] This conclusion is of particular importance for this thesis because it implies that ‘’wrongful conduct’’ gives rise to state responsibility without the UN member states’ endorsement of the Draft Articles. Therefore, the controversy around the Draft Articles will not present an obstacle to the following thesis because ‘’wrongful conduct’’ could be established in this case based on breaches of treaties both Ukraine and Russia have ratified. In this regard, the ICSFT and the CERD will be the guiding conventions Ukraine’s application at the ICJ relies on. The Draft Articles may serve as a helpful guide within the analysis of the actions perpetrated by the DPR and LPR. There, the main question will be whether the conduct of both non-state groups could be attributed to Russia and a wrongful act established in the context of the ICSFT.

Moreover, under IL every state that committed a wrongful act is obliged to ‘’make full reparation for the injury caused’’ if a Court deemed the state responsible for the conduct.[146] The Draft Articles contain clauses related to forms of ‘’Reparation for injury’’.[147] Although going into detail into the different forms of reparation would help grasp the hypothetical options for redress available to Ukraine if the ICJ confirmed Russia’s liability on the basis of a breach of the ICSFT and/or CERD in the merits stage, this thesis will limit itself to dealing with the preliminary stage of proceedings at the ICJ where the question of reparations is not the prime concern.

3.3) The General Procedure

Chapter IV will delineate the embedded institutional differences of the ICJ, ICC and the OHCHR and analyse the tools of these mechanisms. Relevant primary sources such as UN treaties, which Ukraine claims the ICJ had jurisdiction over Russia’s actions in Crimea and Eastern Ukraine with, as well as the OTP’s legal guidelines for instituting preliminary examinations will be scrutinized based i.a. on the Policy Paper on Preliminary Examinations (2013) by the ICC and the Rome Statute. By the same token, an understanding of the HRMMU’s rationale, objectives and the methodology will be given. All these steps are aimed to help identifying the legal remedies and tools the three selected institutions provide in the context of establishing state responsibility, individual responsibility and, respectively, accountability in the overall case ‘’Russia’s Aggression Against Ukraine: State Responsibility, Individual Responsibility and Accountability’’.

The analysis of the arbitration mechanisms of the ICJ and ICC will be conducted in accordance with the generally recognized principles of treaty interpretation, enshrined in Art. 31 till Art. 33 of the VCLT.[148] This implies that mainly primary sources, to wit, relevant conventions (the ICSFT, CERD and the Rome Statute of the ICC) and other applicable documents (Memorandum between the OHCHR and the Ukrainian state, OHCHR reports cited by the ICJ as sources of evidence in the adjudication process and by the ICC in its preliminary-examination activities) are consulted. The methodology applied on the third perspective differs from the former, as the HRMMU is not an arbitration mechanism but a monitoring mission. Still, the mandate allowing the OHCHR to operate on Ukrainian territory is based on a memorandum the OHCHR entered into with the Ukrainian state. Therefore, it is contemplated to identify the rationale of the HRMMU also by means of treaty interpretation.

3.4) Sources of IL and Treaty Interpretation

The identification of primary sources is carried out pursuant to Art. 38 of the ICJ Statute, which outlines the sources the ICJ is instructed to use. It provides guidance for classifying them either as a) ‘’international conventions’’, b) an ‘’international custom‘‘ or c) ‘’the general principles of law recognized by civilized nations’’.[149] As subsidiary means for the determination of rules of law, recourse may be had to d) ‘’judicial decisions and the teachings of the most highly qualified publicists of the various nations’’.[150]

Also defined as the secondary and formal rules of IL, they give orientation to Courts, States and legal practitioners in disputes arising between countries.[151] Whereas primary rules constrain state actions by obligations, secondary rules settle how these norms should be construed and what negative effects result from contraventions.[152] Despite controversy that Art. 38 was not representing the current state of IL, as for example resolutions, declarations, or regulations of a soft law, quasi-legal character were difficult to be included into the list of sources, given a lack of new practise by states, the traditional approach has been maintained.[153] It should be noted that states primarily lean toward legitimizing their conduct with reference to treaties and international customs before drawing upon sources mentioned under c) and d), even though, officially, a general hierarchy between legal rules does not exist.[154]

Against this background, without doubt, both the International Convention for the Suppression of the Financing of Terrorism and International Convention on the Elimination of All Forms of Racial Discrimination, which Ukraine and Russia have ratified without making any reservations to it, fit into category a) of the sources listed in Art. 38 of the ICJ Statute.[155] Before outlining how the general principles of treaty interpretation relate to these two conventions, it is worth mentioning that the process of discerning the applicability of rules in different legal contexts has been considered rather as an art than a science.[156] It means that conventions are not always interpreted according to the book. Within the constraints of rules laid down in treaties, intellectual freedom allows the legal practitioner to shape the Court’s decision.

Both the ICSFT and CERD contain a clause, which enables each of the parties to these treaties to refer a dispute to the ICJ. Pursuant to Art 24 of the ICSFT, ‘’{a}ny dispute between two or more States Parties concerning the interpretation or application of this Convention {…} shall {…} be submitted to arbitration {...). {A}ny one of those parties may refer the dispute to the International Court of Justice, by application, in conformity with the Statute of the Court’’.[157] Likewise, Art. 22 of the CERD contains the following: ’’Any dispute between two or more States Parties with respect to the interpretation or application of this Convention, {...} shall, at the request of any of the parties to the dispute, be referred to the International Court of Justice for decision.’’[158]

The wording ‘’interpretation {…} of this Convention’’ allows for the application of Art. 31 of the VCLT on both ratified agreements. There are mainly three aspects to look at in order to glean the meaning from a convention: 1. The wording (based on a textual approach), 2. the context (relying on a systematic scheme) and 3. the object and purpose (pertaining to teleological methodology) of a treaty.[159] All three elements are governed by the overall principle of good faith (bona fide). They are not hierarchically but logically ordered and can be identified in Art. 31(1).[160] To give a more profound understanding of the legal methodology of treaty interpretation, Art. 31(1) will be divided into three different parts, each provided with a brief explanation:

1. ’’A treaty shall be interpreted in good faith in accordance with the ordinary meaning {…}
2. {…} to be given to the terms of the treaty in their context {…}
3. {…} and in the light of its object and purpose.’’[161]

In the first paragraph the core principle of treaty interpretation is formulated, to wit, that parties to a convention are obliged to interpret the rules in the most honest and sincere manner possible.[162] Requesting each state under a treaty obligation to carry out its duties with a good intent, this foundation can also be found in a separate article of the VCLT: ’’Every treaty in force is binding upon the parties to it and must be performed by them in good faith’’.[163] Whereas Art. 26 is solely addressed to states, Art. 31 is directed to anybody interpreting provisions stipulated in a treaty. Closely linked to the bona fide interpretation is the principle of pacta sunt servanda, which means that agreements, states consented to, have to be fulfilled by them.[164] The wording ‘’in accordance with the ordinary meaning’’ refers to the objective school of interpretation. It starts form the assumption that the determining factor for the understanding of the meaning of a norm is the actual wording contained in a treaty.[165] In this regard, it is worth mentioning that exponents of the subjective school of interpretation read conventions by solely focusing on the intent of the parties.[166]

Secondly, the systematic approach takes not only the preamble and annexes of the treaty under scrutiny but also ‘’(a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty {and} (b) any instrument which was made by one or more parties in connection with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.’’[167] VCLT. Art. 31 (3) touches upon a sub-dimension of treaty interpretation based on the contextual methodology as can be inferred from the wording: ‘’’shall be taken into account, together with the context’’, namely (a) ‘’subsequent agreement’’, (b) ‘’subsequent practice’’ and (c) ‘’relevant rules of international law’’.[168] The analysis of state action post endorsement of the treaty is twofold: 1. It forms a part of treaty interpretation and 2. might help indentifying the evolution of the original norm contained in the treaty.[169]

As to the last paragraph, exponents of the teleological methodology, mainly legal practitioners, are inclined to the view that the inherent meaning of norms should be discerned by looking at the main goal the convention seeks to attain.

If all these approaches have been to no avail, VCLT. Art. 32 stipulates that ‘’recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty’’ to either ‘’confirm’’ the sense of a norm or ‘’determine’’ it.[170] This option can be classified as the historical approach, because it allows for an analysis of preparatory work (travaux préparatoires) when the meaning of the treaty remains ’’ambiguous or obscure’’ or the interpretation ’’lead to a result which is manifestly absurd or unreasonable’’.[171] However, the effectiveness of this provision should not be overestimated as the drafting of a treaty is a highly politicised process. It is for this reason why the ICJ adopted a textual interpretation of treaties, highlighting that ‘’interpretation must be based above all upon the text of the treaty’’.[172]

There must be borne in mind that all elements of treaty interpretation complement each other in the process of reaching a legally reasonable understanding of a treaty or a norm contained in a convention.[173] Here lies the central argument for why it is considered to be rather an art than a science. Although the ILC attempted to provide orientation with Art. 31, the thought lingers on that objectivity remains in the eye of the beholder. On the one hand, Art. 31 sets out a comprehensive guideline, on the other, this comprehensiveness does not answer the question which of the above-mentioned methods is the most applicable one to discern the actual meaning of a treaty. Attempting to diminish this scepticism, it helps to consider the approach taken by the ICJ.[174] Its choice for a scientifically oriented methodology, which is grounded on positivism, will help comprehending the legal reasoning of the Court’s decision on indicating preliminary measures in the case Ukraine v. Russian Federation.

In addition, this author has sympathy for the dynamic (evolutive) approach, which has been adopted by the European Court of Human Rights.[175] Although viewing treaties as a ’’living instrument’’ is considered to be highly controversial in the process of treaty interpretation, some support for this methodology can be found in the Draft Articles on the Law of Treaties by the ILC.[176] In its commentaries, the ILC elaborated on the difficult drafting process of (today’s) Art. 31(3)(c). Whereas the initial version of Art. 31(3)(c) included a temporal element (’’in the light of the general rules of international law in force at the time of its conclusion’’), the ILC opened up this narrow stipulation since some of its members and states raised concerns that such a wording ‘’failed to deal with the problem of the effect of an evolution of the law on the interpretation of legal terms’’.[177] The ILC, therefore, omitted reference to any temporal dimension and stated that the ‘’correct application of the temporal element’’ could be deduced from ‘’the interpretation of the term in good faith’’.[178] Furthermore, the ILC submitted, that whether a norm has evolved could be best understood if one took the ’’intention of the parties’’ into account.[179]

Two conclusions can be made: 1. Whereas the ILC’s commentaries do not generally rule out the application of the dynamic (evolutive) approach, one cannot draw clear inferences from the wording of today’s Art. 31(3)(c) that such an approach was applicable. 2. Every suggestion that a norm might have evolved from the time of its conclusion is pendent upon (a) the traditional approach utilized by the specific Court and (b) the argumentation or intent of the parties that concluded the treaty. Therefore, although sympathy is shared for the dynamic evolutive approach, this author considers it with caution, especially in the light of the ICJ’s traditional focus on textual interpretation of treaties.

3.4.1) Treaty Interpretation and the ICSFT

Against this background, a teleological approach would read the ICSFT as a document that obliges parties to it to ‘’{suppress} the financing of terrorism’’. Already in the title, the jurisdictional scope of the ICSFT is narrowed down. The ICSFT is not about the suppression of terrorism in general but the obligation to suppress the financing of terrorism. In this regard, three terms require further clarification: What is the meaning of ‘’suppression’’ and ‘’financing’’ and how to discern the elements of the noun ‘’terrorism’’ to which states have not found a generally applicable definition yet?[180] Looking into the articles of the convention, the textual methodology might help answer these questions:

First of all, Art. 2(1) clarifies that, in this treaty, ‘’terrorism’’ can be understood either as (a) ‘’an act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex[181] or (b) ‘’{a}ny other act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act’’.[182] A state can also be hold responsible for not having suppressed the financing of actions by a person who either (a) ‘’{p}articipates as an accomplice in an offence as set forth in paragraph 1 or 4 of this article; (b) {o}rganizes or directs others to commit an offence as set forth in paragraph 1 or 4 of this article; {or} (c) {c}ontributes to the commission of one or more offences as set forth in paragraphs 1 or 4 of this article by a group of persons acting with a common purpose’’.[183]

Secondly, ‘’suppression’’ can be understood as the ‘’prevention of the offences set fourth in article 2’’.[184] Art. 18(1) makes also use of the wording ‘’to prevent and counter preparations in {the state parties’} respective territories for the commission of those offences’’.[185] Articles 18(1)(b)(i-iv), 18(2) and 18(3)(b)(ii) go on to determine various different provisions on how the State Parties shall, by ‘’cooperat{ing}’’ with each other, prevent the acts laid down in Art. 2(1). Whereas the articles 18(1)(b)(i-iv) are to be read together with the wording ‘’{m}easures requiring financial institutions and other professions involved in financial transactions’’ set forth in Art. 18(1)(b), the provisions in Art. 18(3)(b)(ii) related to the prevention of the financing of terrorism are dependent upon Art. 18(3)(b) and Art. 18(3). Taken altogether, the meaning of the terms ‘’suppression’’, ‘’financing’’ and ‘’terrorism’’ can be best discerned in combination of Art. 2(1) and Art. 18.

Furthermore, the systematic approach allows for considering the ‘’subsequent practise in the application of the treaty’’, which is relevant bearing in mind the tremendous increase of terrorist attacks after the conclusion of the ICSFT in 1999. One of the most tragic incidents was 9/11 after which the UNSC consensually adopted resolution 1373, i.a., deciding that states should ‘’prevent and suppress the financing of terrorist acts’’ and establish the Counter-Terrorism Committee.[186] Additionally, in September 2006, the UNGA endorsed the ‘’United Nations Global Counter Terrorism Strategy’’ which for the first time defined terrorism as ‘’{...} one of the most serious threats to international peace and security’’.[187] This statement has been reiterated in a recent resolution mainly dealing with the suppression of the financing of terrorism concerning terrorist activities in Syria and Iraq.[188] Although the ICSFT is now being applied before the ICJ for the first time, the relevance of the provisions stipulated in the Convention has grown, as demonstrated by the application of the contextual approach.

One of the principle objectives of chapter IV and V is to gain a comprehensive understanding of the legal framework underlying the remedies and tools Ukraine took recourse to. To achieve this goal, the main arguments of both conflict parties, specifically of Ukraine, enunciated at four public sittings in The Hague as well as the reasoning the ICJ explained its order on instituting provisional measures with will be scrutinized and discussed. For the legal assessment to be more profound, it is helpful to compare former ICJ decisions in other cases bearing Art. 59 of the ICJ Statute in mind.[189] In this regard, separate opinions by judges, appended to the order, will also be conducive to the understanding of how the Russian state can be hold responsible for its actions. Both former Court decisions and opinions by judges can be considered as sources under Art. 38(d) of the ICJ Statute.

3.4.2) Treaty Interpretation and the CERD

While the foundation of international human rights law, the UDHR, can be attributed to soft law, the CERD forms part of nine core international human rights conventions that afford special legal protection to an individual.[190] If a State has signed and ratified one of these conventions, it is provided with a legal remedy in case it finds another state in breach of its obligation under the same treaty it consented to. Generally, state parties are only fully bound by a treaty if they do not make any reservation to it.[191] Although CERD was ratified 14 years before the VCLT entered into force, Art. 4 of the VCLT, that deals with the ‘’Non-retroactivity of the present Convention’’, does not prevent legal practitioners from applying the general principles of treaty interpretation on this convention.[192] As previously stated in this paper, the rules laid down in Art. 31 and Art. 32 of the VLCT form part of customary law and are applicable on that basis alone.[193]

According to the teleological reading, the protection of individual rights of a human being is at the centre of all human rights conventions. In this regard, the title of the CERD speaks of the ‘’Elimination of all Forms of Racial Discrimination’’. Looking at the wording in Art. 1, racial discrimination is defined as ‘’any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life’’.[194] The meaning of the strong term ‘’elimination’’ can be, i.a., inferred from Art. 2 where the ‘’fundamental obligations’’ of the State Parties are laid down, stipulating that ‘’States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races {…}’’.[195] Making use of the contextual approach, Art. 2 should be read together with Art. 5, the central provision, where all rights, State Parties to this Convention are obliged to provide to human beings, are listed.

The systematic approach allows for looking at the preamble where reference is made to the UNC, that is ‘’based on the principles of dignity and equality inherent in all human beings’’, and the UDHR, which stipulates ‘’that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set out therein, without distinction of any kind, in particular as to race, colour or national origin’’.[196] Furthermore, it is stated that ‘’all human beings are equal before the law and are entitled to equal protection of the law against any discrimination and against any incitement to discrimination.’’[197] Generally, the preamble of the treaty facilitates the understanding of why the CERD forms part of the core international human rights instruments because it reiterates central human rights principles and codifies individual liberties in a specific, legally binding treaty.

Taking note of the ‘’subsequent practise in the application of the treaty’’, the CERD is being applied before the ICJ for the second time. Therefore it helps to look at the ICJ’s previous reading of the treaty in the case Georgia v. Russian Federation.

3.4.3) Treaty Interpretation and the Rome Statute

Despite some criticism among academia that the VCLT should neither be totally nor partially applicable on criminal tribunals, this paper will rest on the decision by the Special Tribunal for Lebanon that although the VCLT ‘’referred only to treaties between States {...} those rules of interpretation must {...} be held to be applicable to any internationally binding instrument, whatever its normative source.’’[198]

The analysis of the second perspective that is mainly confronted with aspects of individual responsibility will be based on the Rome Statute of the ICC and the Court’s reasoning in former cases. The ‘’Applicable law’’ is determined in Art. 21 of the Rome Statute, which is basically a modification of Art. 38 of the ICJ Statute made applicable on International Criminal Law with a specified hierarchy in between the following steps:

In the first paragraph, it is stipulated that the Court shall primarily utilize its (a) ‘’Statute, Elements of Crimes and its Rules of Procedure and Evidence’’.[199] The Elements of Crimes are listed in Art. 6 (Genocide), 7 (Crimes against humanity), 8 (War crimes) and 8 bis (Crime of aggression). Subsequently, if needed and applicable, the Court can draw on (b) ‘’treaties and the principles and rules of international law, including the established principles of the international law of armed conflict’’.[200] The latter paragraph allows for the application of the VCLT and the Geneva Conventions I-IV (plus Additional Protocols I, II and III.)

Paragraph (c) speaks of ‘’general principles of law derived by the Court from national laws of legal systems of the world {…} provided that those principles are not inconsistent with this Statute and with international law’’.[201] Additionally, the Court’s reasoning in previous cases can be consulted.[202]

In order to better comprehend the ICC’s interpretation of situations either referred to it by States or initiated by the Prosecutor, it should be noted, that the principal purpose of the Rome Statute, as outlined in Art. 1, is ‘’the exercise {of} its jurisdiction over persons for the most serious crimes of international concern’’.[203] Based on teleological reading, this implies that the Treaty sets boundaries to crimes that do not reach the ‘’gravity’’ threshold.[204] For the Court to determine whether a crime falls into its jurisdiction, Art. 53 provides the necessary legal framework. Since no definition of the term ‘’gravity’’ can be found in the Rome Statute, the textual approach is rendered implausible in this regard. Recourse has therefore to be had to the systematic methodology. It helps to look at the preamble of the Rome Statute where it is affirmed ‘’that the most serious crimes of concern to the international community as a whole must not go unpunished{…}.’’[205] Furthermore, it is recognized by the state parties and signatories of the Convention that ‘’such grave crimes threaten the peace, security and well-being of the world.’’[206] In view of the above, relevant ICC cases, specifically the situation in Georgia, will be consulted to identify the legal factors, which might either impede or lead to an initiation of an investigation in the present situation in Ukraine.


[1] Andrey Zubov, ‘’History repeats itself’’ {Это уже было: as translated into English by this author}, Vedemosti, 1 March 2014 (available at - cut); Zubov was one of the few Russian high-ranking scholars who officially condemned Russia’s annexation of Crimea. For his critical view, he had to leave the Moscow State Institute of International Relations (MGIMO).

[2] UNC, Art. 24.

[3] See e.g.: OSCE, ‘’Thematic Report: Civilian casualties in eastern Ukraine,’’ September 2017 (available at

[4] OHCHR (o), ‘’Report on the human rights situation in Ukraine 16 August to 15 November 2017,’’ UN, 12 December 2017, para. 30 (available at

[5] Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Application instituting proceedings, ICJ, 16 January 2017, para. 4.

[6] OHCHR (o), supra note 4, para. 29.

[7] James Crawford, State Responsibility: The general part, 2013, 85.

[8] At the beginning, the movement was labelled as the ‘’Euromaidan’’; when more people joined, it was renamed to ‘’pro-Maidan’’: ICC, ‘’Report on Preliminary Examination Activities 2014,’’ OTP, 2 December 2014 , paras. 62-63 (available at

[9] OHCHR (k), ’’Accountability for killings in Ukraine from January 2014 to May 2016,’’ UN, 25 May 2016, 3 (available at; Auswärtiges Amt, ‘’Agreement on the Settlement of Crisis in Ukraine,’’ Kyiv, 21 February 2014 (available at

[10] Yanukovych did not give in to the demands of the opposition to resign as he still considered himself acting as ‘’the legitimate head of the Ukrainian state elected through a free vote by Ukrainian citizens’’: OHCHR (d), ’’Report on the human rights situation in Ukraine 15 April 2014’’, 15 April 2014, para. 16 (available at ; Andrey Kondrashev, ‘’Crimea: The Way Home {Крым. Путь на Родину: translated into English by this author},’’ youtube, 15 March 2015, at 8:40-12:40 (available at

[11] OHCHR (d), supra note 10, para. 16.

[12] President of Russia, ‘’Vladimir Putin answered journalists’ questions on the situation in Ukraine,’’ 4 March 2014 (available at; as later explained in chapter II, Russia used this argument to justify its actions in Crimea (‘’intervention by invitation’’: see e.g. Christian Marxsen, ’’International Law in Crisis: Russia’s Struggle for Recognition,’’ German Yearbook of International Law, vol. 58, no. 1 (2015), 6; for scholars, who posited that the vote contravened the Ukrainian constitution as neither the procedures pursuant to Art. 111 nor the required 2/3 majority of votes (338 parliamentarians) were respected, see e.g.: Patrycja Grzebyk, "Classification of the Conflict between Ukraine and Russia in International Law (Ius ad Bellum and Ius in Bello),"Polish Yearbook of International Law, vol. 34, no. 1 (2015), 40.

[13] Roy Allison, ’’Russian ’deniable’ intervention in Ukraine: how and why Russia broke the rules,’’ International Affairs, vol. 90, no. 6 (2014), 1258; the Crimean annexation was a example of Russia’s hybrid warfare in Ukraine: ‘’The Crimean operation used speed and surprise to establish fait accompli on the ground, thus making a military response from the Ukrainian side difficult’’: Tor Bukkvoll, ‘’Russian Special Operations Forces in Crimea and Donbas,’’ parameters, vol. 46, no. 2 (2016), 17.

[14] Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), supra note 5 , para. 36.

[15] Vesti, ‘’The Prime Minister of Crimea requested Putin to help preserve peace in Crimea,’’ {Премьер Крыма попросил Путина обеспечить мир на полуострове: translated into English by author} 1 March 2014 (available at

[16] Kathy Lally, Will Englund and William Booth, ’’Russian parliament approves use of troops in Ukraine,’’ Washington Post, 1 March 2014 (available at

[17] President of Russia, supra note 12.

[18] OHCHR (d), supra note 10, para. 22.

[19] OHCHR (d), supra note 10, para. 23.

[20] See e.g: Thomas D. Grant, Aggression Against Ukraine: Territory, Responsibility, and International Law, 2015, 44 ff.

[21] European Union External Action, ‘’EU restrictive measures in response to the crisis in Ukraine,’’ EU, 16 March 2017 (available at restrictive measures in response to the crisis in Ukraine).

[22] Andrew Roth, ‘’From Russia, ‘Tourists’ Stir the Protests,’’ NYT, 3 March 2014 (available at

[23] Maksymilian Czuperski et al., Hiding in Plain Sight: Putin’s War in Ukraine, 2015, 8.

[24] OHCHR (f), ‘’Report on the human rights situation in Ukraine,’’ UN, 15 June 2014, para. 159 (available at

[25] OHCHR (f), supra note 24, paras. 3-5.

[26] ICC, ‘’Report on Preliminary Examination Activities 2015,’’ OTP, 12 November 2015, para. 86 (available at

[27] ICC, ‘’Report on Preliminary Examination Activities 2016,’’ OTP, 14 November 2016, para. 160 (available at

[28] OHCHR (f), supra note 24, paras. 160, 175.

[29] ICRC, ’’Ukraine: ICRC calls on all sides to respect international humanitarian law,’’ ICRC-Webpage, 23 July 2014 (available at

[30] As i.a. understood from the reasoning of the ICRC that was reluctant to classify the violence in Eastern Ukraine an ‘’international armed conflict’’: see: ibid.; For evidence that Russia provided support to the rebels, see e.g: OHCHR (o), supra note 4, para. 3.

[31] Eric Posner, ’’Russia’s military intervention in Ukraine: international law implications,’’ Eric Posner, 1 March 2014 (available at ‘’Russia’s military intervention in Ukraine violates international law. No one is going to do anything about it’’; John J. Mearsheimer, ‘’The False Promise of International Institutions’’, International Security, vol. 19, no. 3 (1994).

[32] UNSC Res. condemning the referendum on the Status of Crimea vetoed by Russia, UN Doc. S/2014/189, 15 March 2014; UNSC resolution on the establishment of an International Tribunal for crimes connected with the downing of MH17 vetoed by Russia, UN Doc. S/2015/562, 29 July 2015.

[33] Ukraine filed an application at the ICJ against Ukraine on the basis of the ICSFT and CERD on 16 January 2016 to which both Ukraine and Russia are parties: Application of the ICSFT and of the CERD (Ukraine v. Russian Federation), supra note 5; On 25th April 2014 the Prosecutor of the ICC opened an investigation into the situation in Ukraine after Ukraine lodged a declaration under Art. 12 (3) of the Rome Statute of the ICC on 17 April 2014; a second declaration, filed by Ukraine on 8 September 2015, extended the jurisdiction of the Court’s preliminary examination activities of the situation in Ukraine; from 29 September 2015, the Court has been investigating whether any crimes in its jurisdiction have been committed on the Ukrainian territory from 21 November 2013 onwards: ICC, supra note 26, paras. 77-79.

[34] Upon invitation by the Ukrainian government, since 14 March 2014 the HRMMU in Ukraine has been observing the developments in the area of human rights in the country and continuously issuing public reports on breaches of individuals’ fundamental freedoms, primarily occurring in Crimea and the Donbas: OHCHR (k), supra note 9, 3.

[35] See e.g.: Grant, supra note 20; Veronika Bilkova, ’’The Use of Force by the Russian Federation in Crimea,’’ Zeitschrift für ausländisches öffentliches Recht und Völkerrecht - Heidelberg Journal of International Law, vol. 75, no. 1 (2015); Grzebyk, supra note 12.

[36] See e.g. Iryna Marchuk, ’’Ukraine Takes Russia to the International Court of Justice: Will It Work?,’’ EJIL, 26 January 2017 (available at; Iryna Marchuk, ‘’Blog Post: Ukraine and the International Criminal Court,’’ VJTL Blog, 20 December 2016 (available at; Anne Peters, ’’ Vulnerability” versus “Plausibility”: Righting or Wronging the Regime of Provisional Measures? Reflections on ICJ, Ukraine v. Russian Federation, Order of 19 April 2017,’’ EJIL, 5 May 2017 (available at

[37] President of Russia, ‘’Vladimir Putin’s annual news conference,’’ 17 December 2015 (available at

[38] Ibid.

[39] See detailed analysis on the ‘’effective control’’ and ‘’overall control’’ tests in chapter V.

[40] Until 1991 ‘’The Union of Soviet Socialist Republics’’.

[41] UNGA Res. 2625, Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, UN Doc. A/RES/25/2625, 24 October 1970; UNGA Res. 3314, Definition of Aggression, UN Doc. A/RES/3314, 14 December 1974.

[42] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgement, ICJ, 19 December 2005, para. 148; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgement, ICJ, 27 June 1986, paras. 34, 190.

[43] UNC, Art. 2, para. 4.

[44] ILC, Yearbook of the International Law Commission,Vol. II, 1966, 247, para. 1; Ademola Abass, Complete International Law: Text, Cases and Materials, 2012, 352.

[45] Michael Wood and Noam Lubell (eds.), Use of Force, Report by the Committee on Aggression and the Use of Force, International Law Association, Washington Conference, 2014, 2-3; Derek W. Bowett, Self-Defence in International Law, 1958, 151.

[46] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, para. 228.

[47] Ibid.; UNGA Res. 2625, supra note 41.

[48] Ibid.; Christine Gray, The Use of Force and the International Legal Order, in: Malcolm D. Evans (ed.), International Law, 2014, 623.

[49] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, paras. 228, 242.

[50] Corfu Channel (United Kingdom of Great Britain and Northern Ireland v. Albania), Judgement, ICJ, 9 April 1949, page 30; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, paras. 202 ff.; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), supra note 42, para. 164; UNGA Res. 2625, supra note 41.

[51] UNC Art. 2, para. 1; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, para. 212.

[52] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, para. 205.

[53] Ibid.

[54] UNGA Res. 3314, supra note 41, preamble, Art. 1.

[55] UNGA Res. 3314, supra note 41, Art. 3:

[56] UNGA Res. 3314, supra note 41, Art. 5, para. 2.

[57] ICC, ‘’Assembly activates Court’s jurisdiction over crime of aggression,’’ 15 December 2017 (available at; Resolution RC/Res. 6, Resolution on the Crime of Aggression, 28 June 2010, Annex I, Art. 8 bis, para. 1.

[58] Resolution RC/Res. 6, supra note 57, Art. 15 bis, para. 5.

[59] Resolution RC/Res. 6, supra note 57, Art. 15 bis, para. 2.

[60] Resolution ASP/16/Res. 5, Activation of the jurisdiction of the Court over the crime of aggression, 14 December 2017, para. 2.

[61] Wood and Lubell, supra note 45, 2.

[62] Ibid.

[63] Ibid.; Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, para. 246; Olivier Corten‚’’The Russian intervention in the Ukrainian crisis: was jus contra bellum ‘confirmed rather than weakened?, ’’ Journal on the Use of Force and International Law, vol. 2, no. 1 (2015), 33-35; Bilkova, supra note 35, 42; Grigory Vaypan, ’’(Un)Invited Guests: The Validity of Russia’s Argument on Intervention by Invitation,’’ Cambridge International Law Journal, 5 March 2014 (available at; see also: ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts With Commentaries, adopted by the Commission at its fifty-third session in 2001, November 2001, p. 73, para. 4.

[64] Stefan Talmon, Recognition of Governments in International Law, 1998, 149.

[65] Corten, supra note 63, 20; UNSC 7124th meeting, UN Doc. S/PV.7124, 1 March 2014, 5; UNSC 7125th meeting, UN Doc. S/PV.7125, 3 March 2014, 3-4.

[66] Bilkova, supra note 35, 38-39; one can therefore omit pondering on the generally contentious meaning of ‘’armed attack’’, which constitutes a gravity threshold for the defensive use of force.

[67] Ministry of Foreign Affairs of Ukraine, ‘’On Violations of Ukraine’s Laws in Force and of Ukrainian-Russian Agreements by Military Units of the Black Sea Fleet of the Russian Federation in the Territory of Ukraine,’’ 3 March 2014 (available at

[68] Spencer Kimball, ‘’Bound by treaty: Russia, Ukraine and Crimea,’’ DW, 11 March 2014 (available at; Bilkova, supra note 35, 31-32).

[69] Grzebyk, supra note 12, 42; Ministry of Foreign Affairs of Ukraine, supra note 67.

[70] Ministry of Foreign Affairs of Ukraine, supra note 67.

[71] Ibid.

[72] Letter by Russia, Ukraine, the UK, and the US containing text of 1994 Budapest Memorandum, Letter dated 7 December 1994 from the Permanent Representatives of the Russian Federation, Ukraine, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the Secretary-General, UN Doc. S/1994/1399, 19 December 1994, Annex I, paras. 1-2.

[73] Ministry of Foreign Affairs of Ukraine, ‘’Pavlo Klimkin made it clear which provisions of Budapest Memorandum have been violated by Russia,’’ 1 February 2016 (available at

[74] Ibid.; Russian Embassy in Washington DC, ‘’Sergey Lavrov’s remarks and answers to media questions at a news conference on Russia’s diplomacy performance in 2015,’’ 26 January 2015 (available at’s-remarks-and-answers-to-media-questions-at-a-news-conference-on-russia’s-dipl).

[75] Martin D. Brown and Angela Romano, ’’Forty years later, the signing of the Helsinki Final Act continues to have an impact on European security,’’ EUROPP, 13 August 2015 (available at

[76] All EU-member states, the US, Canada, Ukraine et al. voted yes; Russia, Syria, North Korea, Iran, Belarus et al. rejected the resolutions; China, Brazil, South Africa, India et al abstained: UNGA Res. 68/262, Territorial integrity of Ukraine, UN Doc. A/RES/68/262, 27 March 2014.

[77] 13 yes votes, Russia vetoed, China abstained: UNSC Res. condemning the referendum on the Status of Crimea vetoed by Russia, supra note 32; on 13 March, Ukraine requested the GA to ‘’examine the situation’’ pursuant to UNC Art. 11 (2) and invoked the right of self-defense under UNC Art. 51 after its efforts of utilizing UNC Art. 34 and 35 amid the ‘’deterioration of the situation in the Autonomous Republic of the Crimea, Ukraine’’ went to no avail due to Russia’s veto: Grant, supra note 20, 71-73.

[78] Grant, supra note 20, 78.

[79] As deduced from: Ibid.

[80] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, paras. 191,195; Aurel Sari, ’’Ukraine Insta-Symposium: When does the Breach of a Status of Forces Agreement amount to an Act of Aggression? The Case of Ukraine and the Black Sea Fleet SOFA,’’ Opinio Juris, 6 March 2014 (available at

[81] UNGA Res. 3314, supra note 41, Art. 3 (a).

[82] Oxford Living Dictionary, 6 April 2018 (available at

[83] President of Russia, ‘’Address by President of the Russian Federation,’’ 18 March 2014 (available at

[84] Constitution of Ukraine, Government Portal, 28 June 1996, Art. 73 (available at

[85] All EU-member states, the US, Canada, Ukraine et al. voted yes; Russia, China, Syria, North Korea, Iran, Belarus et al. rejected the resolutions; Brazil et al. abstained: UNGA Res. 71/205, Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol (Ukraine), UN Doc. A/RES/71/205, 19 December 2016; UNGA Res. 72/190, Situation of human rights in the Autonomous Republic of Crimea and the city of Sevastopol, Ukraine, UN Doc. A/RES/72/190, 19 December 2017.

[86] UNGA Res. 68/262, supra note 76.

[87] Ibid.

[88] Ibid.; UNGA Res. 56/83, Responsibility of States for internationally wrongful acts, UN Doc. A/RES/56/83, 28 January 2002, Art. 41.

[89] Ibid.

[90] UNGA Res. 56/83, supra note 88, Art. 41, para. 2.

[91] UNSC Res. 216, Resolution 216 (1965), UN Doc. S/RES/216, 12 November 1965; UNSC Res. 662, Resolution 662 (1990), UN Doc. S/RES/662, 9 August 1990; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ, 21 June 1971, para. 126.

[92] For a positive interpretation of the content of the resolution because the phrase ‘’or other unlawful means’’ would broaden the narrow understanding of the prohibition of the threat or use of force and prohibit any illegal method employed to disrupt Ukraine’s national unity and territorial integrity, see: Grant, supra note 20, 74 ff: ‘’The phrase ‘’or other unlawful means’’ is not often found in adopted UN texts concerning armed aggression; resolution 68/262 seems to be the first General Assembly resolution to have used it.’’; for a negative opinion on the voting outcome, see: Heike Krieger and Georg Nolte, ’’The International Rule of Law – Rise or Decline? Points of Departure,’’ KFG Working Paper Series, vol. 1, no. 1 (2016), 11: ‘’The lack of a forceful UN General Assembly reaction to Russia’s attempt to annex Crimea is another indication for a loss of normative certainty.’’.

[93] Ministry of Foreign Affairs of Ukraine, supra note 67; Cheryl K. Chumley, ‘’Russia accused of sinking own cruiser to block Ukrainian navy,’’ The Washington Times, 7 March 2014 (available at; UNGA Res. 3314, supra note 41, Art. 3 (c).

[94] Ministry of Foreign Affairs of Ukraine, supra note 67; Bilkova, supra note 35, 32; UNGA Res. 3314, supra note 41, Art. 3 (e).

[95] For scholars, see: Malcolm N. Shaw in: Scott Appleton and Victoria Ivanova, ’’Ukraine: breaches of international law as crisis continues,’’ IBA, 4 April 2014 (available at; Sari, supra note 80; Grant, supra note 20, 6 ff; Robin Geiß, ’’Russia’s Annexation of Crimea: The Mills of International Law Grind Slowly but They Do Grind,’’ International Law Studies, vol. 91, no. 1 (2015), 432; Harold Koh in: Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), Verbatim Record, ICJ, 8 March 2017, para. 35; Grzebyk, supra note 12, 43; Umut Öszu, ’’Ukraine, International Law, and the Political Economy of Self-Determination,’’ German Law Journal, vol. 16, no. 3 (2015), 440; Bilkova, supra note 35, 27; Allison, supra note 13, 1263; Lauri Mälksoo, Russian Approaches to International Law, 2015, 134; for States, see: US: John Kerry in: CBS, ‘’Russia invading Ukraine is "an incredible act of aggression,"youtube - Face the Nation, 2 March 2014 (available at; US: UNSC 7253rd meeting, UN Doc. S/PV.7253, 28 August 2014, 9; Ukraine: UNSC 7124th meeting, supra note 65, 3; UK: UNSC 7124th meeting, supra note 65, 6; Lithuania: UNSC 7253rd meeting, supra note 95, 4.

[96] President of Russia, supra note 12; Christian Marxsen, ’’The Crimean Crisis: An International Law Perspective,’’ Heidelberg Journal of International Law, vol. 74, no. 1 (2014), 371.

[97] Marxsen, supra note 96, 371.

[98] Anatoly Y. Kapustin, ’’CIRCULAR LETTER TO THE EXECUTIVE COUNCIL OF THE INTERNATIONAL LAW ASSOCIATION ON BEHALF OF THE EXECUTIVE BOARD OF THE RUSSIAN ASSOCIATION OF INTERNATIONAL LAW,’’ MGIMO, 6 June 2014 (available at; Prof. Stanislav Chernichenko, Dr. Elena Konnova, Prof. Oleg Khlestov, Prof. Georgiy Velyaminov, Prof. Ivan Kotlyarov and Prof. Tatyana Neshataeva in: Anton Moiseinenko, ’’Guest Post: What do Russian Lawyers Say about Crimea?,’’ Opinio Juris, 24 September 2014 (available at; for Western scholars, see e.g.: Eric Posner, ’’Would Russia’s annexation of Crimea violate international law?’’, Eric Posner, 8 March 2014 (available at

[99] James R. Crawford, The Creation of States in International Law, 2nd edition, 2006, 390.

[100] Robert McCorquodale, ’’Ukraine Insta-Symposium: Crimea, Ukraine and Russia: Self-Determination, Intervention and International Law,’’ Opinio Juris, 10 March 2014 (available at

[101] Oleksiy Stolyarenko , ‘’Ukrainian vs. Russian – The Ban That Never Was,’’ euromaidan press, 25 May 2014 (available at

[102] McCorquodale, supra note 100.

[103] UNGA Res. 68/262, supra note 76, preamble: ‘’ Recalling also its resolution 2625 (XXV) of 24 October 1970, in which it approved the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, and reaffirming the principles contained therein that the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force, and that any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a State or country or at its political independence is incompatible with the purposes and principles of the Charter’’; for another crucial paragraph forbidding the use of force for self-determination, see: UNGA Res. 2625, supra note 41: ‘’Nothing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour.’’.

[104] President of Russia, supra note 83; McCorquodale, supra note 100; Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation), supra note 5 , para. 5.

[105] As confirmed by the ICC in: ICC, supra note 27, paras. 158, 168.

[106] President of Russia, supra note 37.

[107] UNSC 7253rd meeting, supra note 95, 3 ff; see also: OHCHR (k), supra note 9, 3.

[108] Ibid.; UNSC 7384th meeting, UN Doc. S/PV.7384, 17 February 2015, 4 ff; UNGA Res. 3314, supra note 41, Art. 3 (e).

[109] Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), supra note 42, para. 115.

[110] Ibid.

[111] William W. Burke-White, "Crimea and the International Legal Order,"University of Pennsylvania Law School - Faculty Scholarship Paper 1360 (2014), 4.

[112] Marchuk, supra note 36; Grzebyk, supra note 12, 59.

[113] UNSC Res. 2202, UN Doc. S/RES/2202, 17 February 2015, preamble.

[114] Ibid.

[115] UNSC Res. 2202, supra note 113, annex II.

[116] Gray, supra note 48, 618; see also: Corten, supra note 63; Gerry Simpson, Law and force in the twenty-first century, in: David Armstrong (ed.), Routledge Handbook of International Law, 2011; Thomas M. Franck, "Who Killed Article 2(4) or: Changing Norms Governing the Use of Force by States,"American Journal of International Law, vol. 64, no. 4 (1970).

[117] Gray, supra note 48, 618.

[118] Mary Ellen O’Connell, ’’Ukraine Insta-Symposium: Ukraine Under International Law’’, Opinio Juris, 7 March 2014 (available at; see similar thought in: Allison, supra note 13, 1295.

[119] Matthew Rosenberg, ‘’Breaking With the West, Afghan Leader Supports Russia’s Annexation of Crimea,’’ NYT, 23 March 2014 (available at; Lenta, ‘’North Korea Recognizes Crimean Annexation {translated by author}’’,, 30 December 2014 (available at

[120] Corten, supra note 63; Geiß, supra note 95, 448.

[121] Grant, supra note 20, 10; Geiß, supra note 95, 427, 447.

[122] Christian Tomuschat cited in ILC , supra note 63, p. 114, para. 5.

[123] Mälksoo, supra note 95, 180.

[124] Ibid.; President of Russia, supra note 83.

[125] Thank you from the Kosovar people, ‘’Kosovo Thanks You,’’ 12 April 2018 (available at

[126] Grant, supra note 20, 7.

[127] Thomas D. Grant, ’’The Budapest Memorandum and Beyond: Have the Western Parties Breached a Legal Obligation?,’’ EJIL, 18 February 2015 (available at

[128] See e.g.: Individual communications under the Human Rights Treaty body system; individual complaints with the European Court of Human Rights.

[129] See: Dispute Concerning Coastal State Rights in the Black Sea, Sea of Azov, and Kerch Strait (Ukraine v. the Russian Federation) at the Permanent Court of Arbitration; Ukraine’s inter-State application at the European Court of Human Rights no. 20958/14, Ukraine v. Russia.

[130] On universal jurisdiction, see e.g.: Maria Elena Vignoli, ’’These are the Crimes we are Fleeing: Justice for Syria in Swedish and German Courts,’’ HRW, 3 October 2017 (available at ‘’The principle of “universal jurisdiction” allows national prosecutors to pursue individuals believed to be responsible for certain grave international crimes such as torture, war crimes, and crimes against humanity, even though they were committed elsewhere and neither the accused nor the victims are nationals of the country.’’; see further: Christopher Staker, Jurisdiction, in: Malcolm D. Evans (ed.), International Law, 2014, 322-323.

[131] See: Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ, 11 April 1949, 178-179, 8-9; Robert McCorquodale, The Individual and the International Legal System, in: Malcolm D Evans (ed.), International Law, 2014, 282: ‘’{The Advisory Opinion} certainly indicates that there can be subjects of the international legal system that are not States.’’.

[132] Dapo Akande, International Organizations, in: Malcolm D. Evans (ed.), International Law, 2014, 251.

[133] See e.g.: Roland Portman, Legal Personality in International Law, 2010, 8; see also: McCorquodale, supra note 131, 283-284.

[134] Andrea Bianchi, Looking ahead: international law’s main challenges, in: David Armstrong (ed.), Routledge Handbook of International Law, 2011, 393.

[135] Malcolm N. Shaw, International Law, 7th edition, 2014, 189.

[136] Rome Statute, Art. 12, paras 1-2, Art. 13, para. 1; not to forget about the power of the UNSC that can refer situations to the Prosecutor acting under a chapter VII resolution of the UNSC: Rome Statute, Art. 13, para. 2.

[137] UNGA Res. 56/83, supra note 88, para. 3.

[138] James Crawford, ‘’Articles on Responsibility of States for Internationally Wrongful Acts,’’ UN Audiovisual Library of IL, 2012, 2.

[139] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, ICJ, 9 July 2004, p. 147 ff.; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Judgement, ICJ, 26 February 2007, paras. 385, 398, 407, 431.

[140] Crawford, supra note 138, 2.

[141] Roberto Ago cited in ILC, supra note 63, p. 31, para. 2.

[142] ILC, Yearbook of the International Law Commission, Vol. II, Part Two, 2001, p. 26, Art. 1.

[143] ILC, supra note 142, p. 26, Art. 2.

[144] ILC, supra note 142, p. 34, para. 1.

[145] ILC, supra note 142, p. 33, para. 3.

[146] ILC, supra note 63, p. 91, Art. 31, para. 1; see also: Factory at Chorzów, Jurisdiction, Judgement No. 8, Ser A, No. 9, PCIJ, 26 July 1927, p. 21: ‘’It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself. Differences relating to reparations, which may be due by reason of failure to apply a convention, are consequently differences relating to its application.’’; for authors debating the question of reparations as regards Russia’s obligations under IL, see e.g.: Grant, supra note 20, 10; see also: Grzebyk, supra note 12, 48.

[147] ILC, supra note 142, Art. 34-39; for an example of the most common sought form of reparation, compensation, see: Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgement, ICJ, 25 September 1997, para. 152: “It is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it.’’.

[148] VCLT, Art. 31-32 also form part of customary law as various times reiterated by the ICJ: see e.g. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 139, para. 94; LaGrand (Germany v. United States of America), Judgement, 27 June 2001, para. 99; see also Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law, 9th edition, 1996, 1271; furthermore, since taking force on 27 February 1980, based on the work of the ILC, the VCLT codifies the definition of legal terms such as ‘’treaty’’, ‘’reservation’’ or ‘’party’’: see VCLT, Art. 2.

[149] Statute of the ICJ, Art. 38, para. 1.

[150] Ibid.

[151] Hugh Thirlway, The Sources of International Law?, in: Malcolm D. Evans (ed.), International Law, 2014, 91-93.

[152] Ibid.

[153] Thirlway, supra note 151, 95, 116.

[154] Thirlway, supra note 151, 93, 109.

[155] See: UNTS, ‘’Status of Treaties, Multilateral Treaties Deposited with the Secretary-General,’’ 28 March 2018 (available at

[156] ILC, supra note 44, p. 218, para. 4; for a different view, see Ulf Linderfalk, ’’Is Treaty Interpretation an Art or a Science? International Law and Rational Decision Making,’’ EJIL, vol. 26, no. 1 (2015), 188-189.

[157] ICSFT, Art. 24.

[158] CERD, Art. 22.

[159] Ian McTaggart Sinclair, The Vienna Convention on the Law of Treaties, 1984, 114-115.

[160] Malgosia Fitzmaurice, The Practical Working of the Law of Treaties, in: Malcolm D. Evans (ed.), International Law, 2014, 179; VCLT, General rule of interpretation, Art. 31, para. 1.

[161] Ibid.

[162] Oxford Living Dictionary, 16 March 2018 (available at

[163] VCLT, Art 26.

[164] Oxford Living Dictionary, 16 March 2018 (available at

[165] Fitzmaurice, supra note 160, 179.

[166] Fitzmaurice, supra note 160, 179.

[167] VCLT, Art. 31, para. 2.

[168] VCLT, Art. 31, para. 3.

[169] Shaw, supra note 135, 677.

[170] VCLT, Art. 32.

[171] Ibid.

[172] Territorial Dispute (Libyan Arab Jamahiririya/Chad), Judgement, ICJ, 1994, para. 41.

[173] Shaw, supra note 135, 676.

[174] Territorial Dispute (Libyan Arab Jamahiririya/Chad), supra note 172, para. 41.

[175] Fitzmaurice, supra note 160, 183.

[176] Ibid.; ILC, supra note 44, p. 222, para. 16.

[177] ILC, supra note 44, p. 222.

[178] Ibid.

[179] Ibid.

[180] Ben Saul, Defining Terrorism in International Law, 2008, 21.

[181] Nine treaties, coming into existence prior to the ICSFT, are listed in the Annex of the ICSFT: e.g. Convention for the Suppression of Unlawful Seizure of Aircraft or International Convention for the Suppression of Terrorist Bombings.

[182] ICSFT, Art. 2, para. 1.

[183] ICSFT, Art. 2, para. 5.

[184] ICSFT, Art. 18, para. 1.

[185] Ibid.

[186] UNSC Res. 1373, UN Doc. S/RES/1373, 28 September 2014, paras. 1,6.

[187] UNGA Res. 60/288, The United Nations Global Counter-Terrorism Strategy, UN Doc. A/RES/60/288, 20 September 2006.

[188] UNSC Res. 2253, UN Doc. S/RES/2253, 17 December 2015.

[189] Rome Statute, Art. 59: ‘’The decision of the Court has no binding force except between the parties and in respect of that particular case.’’.

[190] OHCHR (q), ‘’The Core International Human Rights Instruments and their monitoring bodies,’’ 20 March 2018 (available at

[191] Since Ukraine and Russia are parties to the CERD without any reservation and both ratified the convention, one can omit the general debate on whether reservations would contravene the object and purpose of human rights treaties.

[192] VCLT, Art. 4.

[193] See information in footnote 148.

[194] CERD, Art. 1.

[195] CERD, Art. 2, para. 1.

[196] CERD, preamble.

[197] Ibid.

[198] Dov Jacobs, ‘’Why the Vienna Convention should not be applied to the ICC Rome Statute: a plea for respecting the principle of legality,’’ Spreading The Jam, 24 August 2013 (available at; Dapo Akande, ‘’Treaty Interpretation, the VCLT and the ICC Statute: A Response to Kevin Jon Heller & Dov Jacobs,’’ EJIL, 25 August 2013 (available at; Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging, Before the Appeals Chamber, Special Tribunal for Lebanon, 16 February 2011, para. 26.

[199] Rome Statute, Art. 21, para. 1(a).

[200] Rome Statute, Art. 21, para. 1(b).

[201] Rome Statute, Art. 21, para. 1(c).

[202] Rome Statute, Art. 21, para. 2.

[203] Rome Statute, Art. 1.

[204] Rome Statute, Art. 17 (d), Art. 53, para. 1 (c).

[205] Rome Statute, Preamble.

[206] Ibid.

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Russia's Aggression Against Ukraine. State Responsibility, Individual Responsibility and Accountability
Scrutinizing Ukraine’s Application at the ICJ, Ukraine’s Acceptance of the ICC’s Jurisdiction Pursuant to Art. 12(3) of the Rome Statute and the Role of the UN Human Rights Monitoring Mission
University of Southern Denmark
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International Law, International Court of Justice, International Criminal Court, State Responsibility, Individual Responsibility, Accountability, UN Human Rights Monitoring Mission
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Alexander Antonov (Author), 2018, Russia's Aggression Against Ukraine. State Responsibility, Individual Responsibility and Accountability, Munich, GRIN Verlag,


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