Russia’s armed attack is a continuation of its previous aggressive actions against Ukraine, which were contrary to international law and for which neither its leaders nor Russia as a state has yet been held responsible. It is an expression of contempt for the basic principles of the international legal order, formed on the basis of the UN Charter and, in Europe, on standards set by the OSCE. It is also a violation of Russia’s obligations under the Budapest Memorandum, which guarantees Ukraine that its sovereignty and territorial integrity will be respected.

Russia has breached the peremptory norms of international law. In particular, it has defied the prohibition on the use of military force and the obligation to resolve international disputes peacefully. By threatening to use weapons of mass destruction, it has also violated the prohibition on the threat of the use of force (Article 2(4) of the UN Charter). By flouting its own international obligations, Russia has also contravened the principle of fulfilling its international obligations in good faith (Article 2(2) of the UN Charter).

Russia has negated the Ukrainian people’s right to self-determination (Article 1(2) of the UN Charter), which includes the right to choose their own political system, as well as to make free decisions regarding participation in political, economic and military alliances, in violation of the principle of non-interference in internal affairs.

No legal consequences of these acts may be recognised by other members of the international community. No acts of Russia or international agreements concerning Ukraine may be treated as valid.

By committing an act of aggression against Ukraine, the Russian Federation also denied the rule that only a peace-loving state can be a member of the United Nations (Article 4 of the Charter). As a state that is a permanent member of the UN Security Council, Russia shares the responsibility to ensure that international peace and security are maintained, and not to commit an armed attack on another member of the Organization (Article 24 of the UN Charter).

Faced with an armed attack, Ukraine has full rights of self-defence (Article 51 of the UN Charter) and is indeed defending itself.

Since the Russian invasion began, it has become steadily more brutal. Military attacks are also increasingly being carried out against the population and civilian structures, bringing death, suffering and destruction. Cities are being besieged. Critical infrastructure, including sensitive facilities such as hospitals, is being destroyed. A massive refugee surge is being created. A humanitarian catastrophe is becoming imminent. Russia is using weapons banned by international law in combat. All these actions constitute violations of the rules of the law in armed conflicts, including the basic norms of international humanitarian law. They constitute serious and massive violations of human rights.

The Russian Federation is also breaching its international obligations to its own population. In pushing for armed conflict, it has used prohibited war propaganda (Article 20 of the International Covenant on Civil and Political Rights). It is also violating a series of human rights – including freedom of expression through media restrictions, unlawful arrests and detentions, and threats of excessive punishment – to which Russia has committed itself under international law.

Russia’s aggressive military actions against Ukraine undermine the civilizational achievements of the free world. They are an expression of contempt for its legal foundations. Russia will have to bear responsibility for this internationally wrongful act, including compensation to Ukraine. Its indemnity should fully compensate for all property and personal damage, in accordance with international law (Permanent Court of International Justice, judgment concerning the Chorzów factory case). Individuals who made the decision to proceed with the armed attack, as well as commanders issuing orders in contravention of international law, especially those being international crimes, and soldiers carrying out such orders will have to bear international criminal responsibility.

The armed conflict between Russia and Ukraine challenges the existing international order. After this event, this order will no longer be the same. The basic mutual trust and confidence between states, which has been built up since the end of the Cold War, has been undermined. This is a great threat to the future of humanity. It will be necessary to revise this order by emphasising the security of individual states and their groupings as well as their autonomy.

Russia’s aggression against Ukraine makes it clear that a just international order cannot be built without setting it daily on a foundation of human dignity and human rights, the dignity of nations and their sovereign rights, and without recognising that humanity is a whole and its component parts may not be set against each other. No other values, especially the pursuit of economic profit or other short-term gain, can prevail over these. Nor can such profits justify the acceptance of aggression. No state can be indifferent to the violation of these values. No reason can justify aggression against any state or challenging its right to exist and develop freely. In accordance with international law, no state has the right to recognise the legal consequences of Russian aggression against Ukraine.

 

On behalf of the Legal Advisory Committee,

Prof. Dr. Cezary Mik

Chairman