Wars or more appropriately, the interstate conflicts have been disturbing the world peace from time immemorial. The advent of the humanitarian laws after the war of Solferino, has to a great extent tried to control wars and armed rebellion and have safeguarded the horse-de-combat and the non participants of the war from the adverse effects of the conflicts between the sovereign. After the First World War, the League of Nations was formed to condemn wars and establish world peace, but due to its ineffective machinery, the purpose was frustrated and the world witnessed the Second World War. The United Nations was established subsequently and with effective machinery it has been able to control and restrict any further world wars. But it has failed in many cases to bring about peace and harmony among the conflicting nations and areas of the world and we have seen many armed rebellions between nations or internal conflicts even after the commendable efforts of the UN. The dispute between Russia and Ukraine is a tussle between two nations regarding the sovereign power over a particular area. Russia being a world power and a permanent member of the UN has blatantly violated its duty towards the world peace. Even the UN has also failed to bring about peace and harmony among the nations though it has the machinery and veto power is one of such who is to blame. This paper thus brings about a research into the main objectives of different conventions and principal of customary international law and otherwise, which have been dedicated towards the world peace and tries to suggest different remedies to the existing system so that even the small and internal armed conflicts can be control and bring about world peace to every part of the world.

Key Wards: Russia-Ukraine, Humanitarian Law, Jus in bello, Jus ad bellum, United Nations

Death and destructions are the inevitable consequences of a war. It envisages taking lives of many, be it a civilian population or the military one neither it distinguish between the civilian objects and the military objects. The only way to avoid this mass destruction is to avoid war but time and again it has become a necessary and unavoidable evil. It thus becomes necessary that there must be rules of conduct which must be adhered to whenever there is a war or war like situation. That is when, International Humanitarian law comes into picture with the object of reducing human sufferings and damages.[1]

The part of international law which governs/regulates war is known as International Humanitarian Law or Law of war or law of armed conflict. It deals with rules related to use of forces, war victims, hostilities etc. aiming to minimize the effect of wars. Henry Dunant came up with the idea of international organization popularly known as International Committee of Red Cross, after the Battle of Solferino, which provides for help to wounded or sick soldiers in battlefield. This also led to drafting of Geneva Convention which includes rules of ‘just war’.  Geneva Convention is based on the following: firstly, rules when a nation can resort to use of force, also known as jus ad bellum and secondly, law which govern the conduct on use of force during war which is also known as jus in bello[2]. These rules are interrelated but works independent of each other, meaning thereby, compliance of one is necessary even if the other is not complied with.

Jus ad bellum- It is derived from the concept of ‘just war’ which emerged during the era of St. Thomas Aquinas. It culminated in the Treaty of Westphalia[3] 1648 and re-emerged during the time of World War I and II when millions of people lost their lives. The United Nation Charter in its Article 2(4) prohibits members-state from using or threatening to use force against one-another. The exceptions to this are-: Art 51 of UN Charter, where member states have right to act in self defense against armed attack and Chapter VII under which Security council is permitted to authorize military attacks to maintain and preserve international peace and security.

Jus in Bello- the International Humanitarian law is synonymous with jus ad bello and these principles becomes prominent when there is sustained armed conflict. These principles are applied to parties to the war and regulate their conduct during the war irrespective of the illegality or reason behind war and strive to protect victims of such conflict. Jus in bello has been derived from conventions and customary international laws.[4]

The two main conventions that govern the International Humanitarian law are – Hague Convention (1899 and 1907) and Geneva Conventions of 1949. The law as per Geneva Convention seeks to protect hors de combat (the wounded soldiers and prisoner of wars) and civilians who are no longer or were not participating in the war. The Hague convention regulated the methods of warfare and rights and obligation of belligerents in conducting hostilities.[5] There are four Geneva conventions and their additional protocol namely-

Moreover, the common Article 3 to all four Geneva Conventions provides for the minimum criterion for safeguarding those who does not have a protected status in war and prohibits cruel treatment, murder, torture, sexual assault/ rape, mutilation, biological experiments etc.[6] Apart from it, the monuments of historic importance, hospitals, buildings related to art, religion, science and places where sick and wounded are treated needs special protection until and unless they are used for military purposes.

Jus in Bello also regulates the use of weapon during the war which causes superfluous injury[7] and poisonous and chemical weapons.

The concept of ‘just war’ is imbibed in Jus in Bello through following principles:

It is also important for the application of International Humanitarian law that there must be distinction between international armed conflict and non-international armed conflict. International armed conflict means when two state parties are involved in the armed conflict, whereas rules of non-international armed conflicts are applied when the armed conflict takes place within a state’s territory between governmental forces and non-state forces.

The Russia-Ukraine war belongs to the first category that is International armed conflict. It is also interesting to note that Russia and Ukraine are member states of United Nation Charter and are parties to the Geneva and Hague Conventions. Irrespective of this, the war between these two nations has been in continuation since last 10 months and the rules to International Humanitarian law have been violated.

Ukraine was one the keystone of USSR, second most populated and fifteenth most powerful Soviet Union republic etc making it important for the Union. The decision of Ukraine to sever ties came as shocker to ailing powers. Ukraine has been aligning with western institutions like European Union (EU) and NATO. On the other hand, the Russian-speaking population of Ukraine has always favored ties with Russia.

The long list of justifications that were offered by Russian President included more fundamental issues like the validity of Ukraine’s statehood and its identity. It is Putin’s belief that the modern states of Kyiv commonwealth- Russia, Ukraine and Belarus must share a political destiny and there should be deep-seated unity and identity among these nations. Consequently, it is believed that distinct identity of Ukraine and Belarus is an outcome of Western manipulation and are becoming part of “anti-Russia” troop.

Ukraine’s was tilted towards creating strong ties with EU which was the reason of the tension between these two nations. Russia wanted Ukraine to join the Eurasian Economic Union (EAEU), which has not come into existence till date.  In 2013, the President of Ukraine Yanukovych scrapped the idea of forming strong bond with EU due to pressure. This also led to the infamous ‘Revolution of Unity’ or Maidan revolution that started as a response against the then Ukrainian President as the citizen considered this decision as betrayal and a corrupt practice. In 2014, Russia’s annexation and taking control of Crimea led to an armed conflict in Ukraine. As per Putin it was a necessary step to protect Russian citizens and Russian speaking population present in Crimea. The surprising fact was that people of Crimea supported the annexation thus creating rift between two ethnicities. This act of Russia was condemned in International community and as a result various sanctions were imposed on Russia.

The same narrative has been provided by Russia this time as well. It was supporting the separatists in the southeastern region of Ukraine and the area was often referred to as NovoRussia, which means New Russia. The 2022 attack by Russia can be seen as resentment towards expansion of NATO after cold-war leading to breach of Russian influence over the area.

Russia has always warned against this alliance with NATO as a hostile act towards Russia.

This armed conflict has taken a heavy toll on the nations, especially civilians and the alarming rate of migration. There is widespread destructions and damage of infrastructure like homes, hospitals, schools etc. The world is witnessing targeting of civilians which is prohibited under various Conventions governing war and rampant breach of international law and rules on war.

In the beginning of the year 2022, the world witnessed Russia’s President Valdimir Putin declaring war against its neighboring country Ukraine. In February, the Russian Parliament adopted a resolution to recognize two eastern states of Ukraine, namely, Luhansk and Donetsk as independent states. President Putin signed decrees recognizing them independent states and following this he ordered armed troops to Luhansk and Donetsk. Russia claimed it as a “peace-keeping” operation. Since February there has been full scale land, air and sea invasion of Ukraine, the target being the military assets and Ukrainian cities. Ukraine has also acted in its defense and has been successful in damaging Russian troops as well. The potential ‘third-world war’ as claimed by many has caused a huge loss to life and property with huge predictions of nuclear war. Apart from violation of many international conventions of whose Russia and Ukraine are parties of, there has been constant violation of Ceasefire agreement entered into in 2014 in the conflict-affected areas in the line of contact.[9]

This is not the first time that Russia has attempted to invade the sovereignty of Ukraine. Russia has always been uncomfortable due to the western influence over countries which were once a part of Union of Soviet Socialist Republics (USSR), more specifically with the presence of The North Atlantic Treaty Organization (NATO) and has always considered as a threat to Russia.

Russia’s attack on Ukraine does not qualify any criteria of just war. Russia’s claim that it is defending itself from the threats posed by USA and NATO and thus justifying its military action under Article 51 is entirely baseless. Politically and diplomatically, Russia might be afraid of influence of NATO and USA in Ukraine but it is to be noted that Ukraine never threatened Russia with any sort of military actions. Hence, the justification is not viable.  On the other hand, Ukraine has right to self defense and to invite for military assistance which is legal.

Russia’s recognition of Luhansk and Donetsk three days prior to its invasion does not fulfill the criteria of recognition of states as mentioned under International law. These states are not completely independent, they are dependent on Russia for economic, financial, military support and their independence is established through force. Even bigger question is whether Luhansk and Donetsk are capable of fulfilling obligations under international law? The answer is of course in negative. These claims are nothing but a list of fabricated excuse to invade Ukraine’s sovereignty.

As far as methods and means of warfare us concerned, it is alleged that the Russia’s practice of indiscriminate attacks using ballistic missiles and other explosives weapons in populated areas; airstrikes on civilian populations, monuments and hospitals; targeting nuclear power plants constitutes violation to International humanitarian law.

Under Article 41 of Additional Protocol I to Geneva Convention it is prohibited to attack on hors de combat.  The article become relevant for the Prisoners of war in the ongoing Russia- Ukraine armed conflict. Article 41 further states that Prisoner of wars who have been captured by the opposite party shall be released and necessary precautions will be taken for their evacuation. However, Ukrainian Special Operation Forces seems to breach this article by threatening that the artillerymen if captured will be killed or not spared. As per Rule 47 of ICRC study on Customary International Humanitarian law, attacking, killing or placing in adverse condition of a hors de combat is a serious violation of International Humanitarian Law.[10] It is also a norm of customary international law which is applicable to international and non-international armed conflict. This customary International law with respect to international armed conflict has been recognized in Lieber Code[11], Brussels Declaration[12], Oxford Manual[13] and the Hague Regulation also states that it is forbidden to kill or cause injury to combatant who has laid down his arms, is unable to defend himself or has surrendered[14]. The statue of International Criminal Court has declared it as War crime[15]. Although the statement of Ukrainian Special Operation Forces might not have triggered any killing but it will be interpreted as no quarter order (the term means to give no quarter or home to and to refuse to spare life of captured combatant of the opposite parties to an armed conflict) which is prohibited under Rule 46 of ICRC study on Customary International Law.

Information warfare, which can be defined as an operation undertaken to gain informational advantage over the opposite party, has become inseparable part of the current Ukraine-Russia conflict. Recently, Ukraine leaked the pictures and videos of captured or surrendered Russian soldiers to demonstrate success of Ukrainian forces. Such acts are however prohibited under Article 13 of Third Geneva Convention, which deals with humanely treatment of Prisoners of War and the second paragraph to this article states that Prisoners of war must at all case be protected from insults, public curiosity and acts of violence.

Apart from the various conventions and customary International Law there are         International Courts and Tribunals which plays active roles in investigating, prosecuting and punishing the alleged states and individuals. The following paragraph deals with the take of these institutions in ongoing Russia Ukraine War.

International Criminal Court (ICC), International Criminal law and International Court of Justice (ICJ):  the International Criminal Court is a treaty based permanent international criminal court which was established with a view to punish the perpetrators of heinous crimes concerning the international community. The Statute of ICC is governed by Rome Statute and was adopted in Rome in 1998. It came into force on 1^st July 2002. It was a welcoming step to punish war crimes, genocide crimes against humanity and the crime of aggression.[16] As per Statute of ICC, its primary responsibility is prosecution of International crime. Geneva Conventions and Additional Protocol I of 1977cast duty upon State to prosecute for war crimes in their own national courts or extradite the people involved in such crimes.  ICC in such scenario can exercise complementary jurisdiction when the state is unable to prosecute the suspects. Under Chapter VII of United Nation Charter, Security Council can request ICC to start a proceeding.[17] The States which are not parties to Rome Statute can also accept the jurisdiction of ICC by lodging a declaration with the Registrar accepting the jurisdiction relating to crime in question.[18]

International Criminal law deals with individuals violating international laws related to war crimes, crimes against humanity, genocide and aggression. After World War II, the international community started believing that individual along with states can be held responsible for violation of International laws. This led to establishment of Tokyo and Nuremberg tribunals to prosecute individuals involved in such crimes. If any act is labeled as international crime, the legal consequence that follows is the States are bound to punish and prosecute such acts even through universal jurisdiction, even in absence of relationship between accused person and state exercising jurisdiction. Under Geneva Convention and Additional Protocol I, certain acts which are considered as grave breaches and High Contracting Parties have jurisdiction on the basis of principle of universal jurisdiction to prosecute and punish such breaches.[19]

On February 28 this year, ICC has declared its decision that it will proceed with investigation in the current Russia-Ukraine war. Both Ukraine and Russia are not a state party to Rome Statute but Ukraine has submitted to the jurisdiction of ICC twice as per Art 12(3) of Statute of ICC. In 2014, Ukraine filed a declaration accepting the court’s jurisdiction and requesting to investigate alleged crimes against humanity. In 2015, Ukraine filed the second declaration accepting court’s jurisdiction till an undetermined date. The ICC prosecutor after concluding preliminary investigation found that there were wide range of activities that could constitute crime against humanity in Ukraine’s jurisdiction and in 2022 with reference to escalating conflict states that are sufficient reasons to expand the ongoing preliminary investigation. However there is a limit to ICC’S jurisdiction, as per Article 15 bis of Rome Statute of ICC, it does not have jurisdiction over Russian’s nationals involved in crime of aggression.[20] Ukraine in its domestic criminal law has prohibited crime of aggression and with reference to the ongoing war Ukrainian Prosecutors have filed over 600 complaints against Russian nations for the aggression. The perpetrator of Crime of aggression is generally the supreme decision making authority of the state and in this case it is obviously The President of Russia. The domestic court of Ukraine cannot however punish him because the sovereigns are immune from prosecution in another country’s domestic court. This implies that International Courts and Domestic Courts both are unable to punish the Russian officials.

International Court of Justice (ICJ) is one of the Principal organs of United Nations and performs the function of settling disputes submitted by states accepting the jurisdiction as per international law. No declaration is made by Russia and Ukraine accepting ICJ’s compulsory jurisdiction as per Article 36 of Statute of ICJ. This limits the jurisdiction of ICJ to only those cases where Genocide Convention has been ratified by both Ukraine and Russia. On this backdrop, Ukraine on February 2022 has filed an application requesting ICJ to initiate proceeding against Russia as per Convention of 1948 on Prevention and Punishment of Crime of Genocide. It has further alleged that Russia has based its invasion on false claims of genocide on part of Ukraine against Russian-speaking population in the region of Luhansk and Donetsk. Ukraine sought provisional measures which could be applied with immediate effect and ICJ on March 2022 granted this request. Russia was ordered to suspend its military action and ensure ceasing of military and irregular armed unit actions. Russia filed objection against ICJ’s jurisdiction in present case and has clearly not followed the order as the war still continues. It is mentioned in United Nation Charter that member state must comply with the decision of ICJ and member state can also request Security Council to take enforcement action against non-complying party. In this case the non-complying party is Russia which also happens to be a permanent member of Security Council and it can always use its veto power against the proposal of the council against it.

With the ongoing Russia-Ukraine war the world can witness the failure of United Nation Organization in maintaining international peace and security. The most important criticism centers on the functioning and structure of Security Council. The demarcation between the permanent members and non-permanent members and the upper-hand given to the permanent members by giving them special rights like right to veto has been the foremost reason of failure of Security Council in taking effective measures against stopping wars even today.  There are plenty of evidences showing the use of veto power by these permanent nations, mostly against the challenges posed against their actions including military actions.

Exercise of the veto power was essential for the decision making of the Security Council and eventually come at a consensus with all the world powers to protect the peace and harmony in the world. But this power has been a evil to the activities that the UN undertakes. The permanent members uses them in accordance with their own international relations with other countries and thus sometimes the main objective of the Security Council resolutions are frustrated. Russia has used its veto power on the resolution of Security Council which demanded Russia to stop the attacks and withdraw the troops. This act of Russia was condemnable but also predictable one. India was also one of the countries which voted against the resolution alongwith China and United Arab Emirates because of its friendly relation with Russia.

Though the veto power is essential in some circumstances, it should be excused when the member exercising such power is himself involved or has a deep relation with other member who is involved. 

War and conflicts have never been out of the news even with the commendable efforts of the UN. And somewhere that is because of the fact that it is not a sovereign body but runs through the consent of the states who are its members. Sovereignty is a right of a state and such cannot be excused. But at times of a war or a conflict that has an effect of disturbing the peace and harmony in the society, the UN must act in a way such as the prima facie objective of the UN i.e. to protect the world peace is of more preference than the sovereignty and voting powers of the state.

 The war is still in continuance even after 10 months since its beginning and now there are predictions and threats of nuclear war by Russia. There has been violation of Humanitarian Law and human right by both the parties, but the breaches done by Russia is much more. The Russians have targeted the power grids in Ukrainian cities due to which people are forced to live with no electricity and moreover the regions are well known for its extreme cold climate, in that case without electricity people will succumb to the cold winters. Due to constant airstrikes and prediction of nuclear weapons people are living inside the bunker. This has once again raised the need for stronger international platforms for resolution of disputes, stronger executory bodies and even more stringent sanctions to overcome these situations. The demarcation and preferential treatments of big powers in international forum and UN must be stopped too and at the same time the so called smaller nations must unite and strengthen their alliance to face such situations.  The current international situation reminds of the ‘state of nature’ described by Thomas Hobbes as order less, lawless and full of chaos,  with no authority or government to look up to (here it would mean without a strong central international authority) and in order to maintain the peace and law and order amongst nation it is important for all nations to willingly come together and consent to a strong international authority having the ultimate power to manage such situations effectively even it means for the nations to compromise a part of their sovereignty for collective good.