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Patrick Keenan, Urbana-Champaign Professor of Law at the University of Illinois, is an expert in human rights, terrorism law and international criminal law. He spoke with Phil Ciciora, News Bureau Business and Law Editor on the illegality of Russia’s invasion of Ukraine and the possibility of prosecution for war crimes stemming from atrocities committed against civilians.

Was Russia’s invasion of Ukraine illegal under international law? Can anyone be prosecuted for this?

Russia’s invasion of Ukraine looks like a flagrant violation of the United Nations Charter. The UN charter states that all states must refrain from using violence to resolve disputes unless they are defending themselves or their allies, and some other very narrow cases. Russia didn’t do that here. Invading another country under these circumstances is called the crime of aggression, and it is illegal under international law.

Unfortunately, the International Criminal Court does not have jurisdiction over this particular crime because Russia and Ukraine have not signed up to the ICC. International lawyers are currently debating the possibility of creating a special tribunal to try Russian leaders for the war. This is what happened after the Second World War. The Allies created the Nuremberg Tribunals to try German leaders for their crimes, including the crime of aggression. Something similar could happen for Ukraine, but it’s far from happening at the moment.

Will anyone be held responsible for the atrocities committed against Ukrainian civilians?

Unlike the crime of aggression, the International Criminal Court has definitive jurisdiction over war crimes committed in Ukraine. Ukraine has voluntarily agreed to let the ICC conduct an investigation, and the court has already announced that it is investigating war crimes in Ukraine.

War crimes include the deliberate targeting of civilians; attacks that cause civilian casualties disproportionate to the military objective; and attacks on hospitals, schools, historical monuments and other key civilian sites. Many horrific acts of violence resulting in civilian deaths would not meet the definition, but much of what Russia has done in Ukraine would meet the legal standard of war crimes.

To prosecute, the ICC prosecutor must gather enough evidence to prove the case. And the prosecutor can only prosecute a case if there is an accused – an individual or individuals who can be personally accused. Because the war is ongoing, it is too early to know who might be prosecuted. It will also depend on the ability of those who have committed atrocities to be arrested and handed over to the ICC. This requires international cooperation because the ICC does not have its own police force; he relies on every country to arrest people and hand them over.

I predict that at least some Russian personnel will eventually be charged with war crimes, but that is unlikely to happen soon.

How is the Russian invasion of Ukraine different from other armed conflicts?

There are many novelties, starting with the scale of the war. This is the biggest conflict in Western Europe since the end of World War II. There have been many wars around the world since then, including the conflict in the former Yugoslavia, but this is the biggest war in Europe for over 75 years. Another novelty is the scale of the economic sanctions against Russia. Essentially expelling Russia from the international banking community is almost unprecedented, as is the freezing of Russia’s foreign exchange reserves in the United States and Europe. Previously, sanctions like this had only been used against Iran, North Korea and a few other countries.

Another new aspect of this war is the huge amount of evidence that is collected during the war. The ICC has set up an online portal for ordinary citizens to submit information, including photos and videos, that could become evidence in a case at some point in the future. The Ukrainian government has also set up a similar portal to collect evidence of crimes Russia is committing against civilians. It’s new – collecting evidence during the conflict directly from ordinary people. It’s a big change. This could make it easier for prosecutors to identify war crimes and account for victims. But it could also make life more difficult for prosecutors because they now have to verify all this information. They can’t take it literally. They have to determine if it’s legitimate.

Russia’s conduct in the war is unfortunately not new. It’s eerily similar to what Russia perpetrated in Syria. There has been a war in Syria between the government and various rebels since 2011. Russia and Iran are the main allies of the Syrian government in the war. Russia has carried out dozens of airstrikes in Syria, many of them targeting civilians. These strikes hit hospitals and many other civilian buildings and devastated many towns and villages. There is a stack of reports from the United Nations, Amnesty International, Human Rights Watch and many other organizations that have documented these atrocities.

Unfortunately, it looks like Russia is doing the same in Ukraine. There have been strikes against hospitals, schools, universities and shopping malls. These places are not legitimate wartime targets, but Russia has hit them and continues to attack civilians. If Russia’s record in Syria, Georgia and Chechnya is any indication, these atrocities will likely continue in Ukraine.

About Geraldine Higgins

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