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

Politics - Topic: Peace and Conflict, Security

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.

Table of Contents

• 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

Objectives and Key Themes

This thesis examines the legal framework and tools available to hold Russia accountable for its actions in Ukraine, specifically its annexation of Crimea and support of the rebels in Eastern Ukraine. The research analyzes three key perspectives: Ukraine's application at the International Court of Justice (ICJ), Ukraine's acceptance of the International Criminal Court's (ICC) jurisdiction, and the role of the UN Human Rights Monitoring Mission in Ukraine (HRMMU).

• The limitations of international law in holding Russia responsible for its illegal use of force
• The potential for the ICC to hold individuals accountable for crimes against humanity and war crimes
• The importance of the HRMMU in gathering evidence and documenting violations of international human rights and humanitarian law
• The challenges and opportunities for establishing state and individual responsibility in the context of the Ukraine crisis
• The interplay between different international legal mechanisms and their effectiveness in addressing the crisis

Chapter Summaries

• Chapter I - The Background: This chapter provides an introduction to the thesis, outlining the context and background of the Ukraine crisis. It highlights the international consensus on Russia's aggression against Ukraine and the devastating consequences of the conflict.
• Chapter II - Fundamental Norms at Stake: This chapter delves into the core principles of international law that Russia has violated through its actions in Ukraine. It examines the annexation of Crimea and the conflict in the Donbas, analyzing the breaches of international law related to territorial integrity, sovereignty, and the prohibition of the use of force.
• Chapter III - Legal Framework and Methodology: This chapter outlines the legal framework and methodology used in the thesis. It introduces the three perspectives under analysis: the ICJ, the ICC, and the HRMMU. It also discusses legal personality, state responsibility, and the sources of international law relevant to the research.
• Chapter IV - Analysis - The Three Mechanisms and Their Tools: This chapter analyzes the legal tools and mechanisms employed by the ICJ, ICC, and HRMMU in the context of the Ukraine crisis. It examines the jurisdiction and procedures of each institution, highlighting their strengths and limitations in establishing state and individual responsibility.
• Chapter V - Assessment of Ukraine's Recourse to the Three IL Mechanisms: This chapter assesses Ukraine's recourse to the ICJ, ICC, and HRMMU, evaluating the effectiveness of these mechanisms in addressing the conflict. It analyzes the specific challenges and opportunities faced by each institution in holding Russia accountable for its actions and ensuring justice for victims.

Keywords

The primary focus of this thesis is on the legal implications of Russia's aggression against Ukraine. This includes an examination of the tools and mechanisms available for establishing state and individual responsibility, particularly within the context of international criminal law. Key terms and concepts include: International Court of Justice, State Responsibility, Plausibility Test, International Criminal Court, Individual Responsibility, Overall Control Test, UN Human Rights Monitoring Mission in Ukraine, Accountability, International Convention for the Suppression of the Financing of Terrorism, International Convention on the Elimination of All Forms of Racial Discrimination, Rome Statute.

• College: University of Southern Denmark
• Grade: 12
• Author: Alexander Antonov (Author)
• Publication Year: 2018
• Pages: 120
• Catalog Number: V441604
• ISBN (eBook): 9783668798373
• ISBN (Book): 9783668798380
• Language: English
• Tags: International Law, International Court of Justice, International Criminal Court, State Responsibility, Individual Responsibility, Accountability, UN Human Rights Monitoring Mission