University of Illinois Urbana-Champaign law professor Patrick Keenan is an expert in human rights, counterterrorism law and international criminal law. He spoke with News Bureau business and law editor Phil Ciciora about the illegality of Russia’s invasion of Ukraine and the potential for war crime prosecutions stemming from atrocities committed against civilians.
Was Russia’s invasion of Ukraine illegal under international law? Can anyone be prosecuted for it?
Russia’s invasion of Ukraine looks like a crystal-clear violation of the United Nations charter. The U.N. charter says that all states must refrain from using violence to resolve disputes unless they are defending themselves or their allies, and a few other very narrow instances. Russia wasn’t doing that here. Invading another country in these circumstances is called the crime of aggression, and it is illegal under international law.
Unfortunately, the International Criminal Court doesn’t have jurisdiction over this particular crime because Russia and Ukraine have not signed on to the ICC. International lawyers are currently debating whether it would be possible to create a special tribunal to try Russian leaders for the war. This is what happened after World War II. The Allies set up the Nuremberg Tribunals to try German leaders for their crimes, including the crime of aggression. Something similar might happen for Ukraine, but that’s a long way off right now.
Will anyone be held accountable for the atrocities committed against Ukrainian civilians?
In contrast to the crime of aggression, the International Criminal Court definitely has jurisdiction over war crimes committed in Ukraine. Ukraine voluntarily agreed to let the ICC do 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 disproportionate civilian casualties given the military objective; and attacks on hospitals, schools, historic monuments and other key civilian sites. Plenty of 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 for war crimes.
To prosecute, the ICC prosecutor must gather enough evidence to prove the case. And the prosecutor can’t prosecute a case unless there is a defendant – an individual or individuals who can be personally charged. Because the war is ongoing, it’s too soon to know just who might be prosecuted. It also will depend on whether any of those who have committed atrocities can be arrested and turned over to the ICC. That takes international cooperation because the ICC doesn’t have its own police force; it relies on individual countries to arrest people and turn 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’s a lot that’s new, starting with the scale of the war. This is the largest conflict in Western Europe since the end of World War II. There have been many wars around the world since then, including conflict in the former Yugoslavia, but this is the biggest war in Europe in more than 75 years. Also new is the scale of the economic sanctions against Russia. Essentially kicking Russia out of the international banking community is almost unprecedented, as is the freezing of Russia’s foreign currency reserves in the U.S. and Europe. Previously, sanctions like this had only been used against Iran, North Korea and a couple of other countries.
Another new aspect of this war is the enormous amount of evidence that is being collected during the war. The ICC has set up an online portal for ordinary people to submit information, including photos and videos, that might end up being evidence in a case at some point in the future. The government of Ukraine also has set up a similar portal to gather evidence of the crimes that Russia is committing against civilians. This is new – gathering evidence during the conflict straight from ordinary people. It’s a big shift. It might make it easier for prosecutors to identify war crimes and account for victims. But it also might make prosecutors’ lives more complicated because they now have to verify all of this information. They can’t just take it at face value. They must determine if it is 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 Syrian government’s main allies in the war. Russia has carried out scores of airstrikes in Syria, many targeting civilians. These strikes have hit hospitals and many other civilian buildings and devasted many cities and town. There’s a stack of reports by the United Nations, Amnesty International, Human Rights Watch and many other organizations that have documented these atrocities.
Sadly, it looks like Russia is doing the same thing in Ukraine. There have been strikes against hospitals, schools, universities and shopping malls. These places aren’t legitimate targets in wartime, but Russia has hit them and continues to attack civilians. If Russia’s track record in Syria, Georgia and Chechnya is any indication, these atrocities will likely continue in Ukraine.