The Russian Invasion of Ukraine and International Law

Prof. (Dr.) Leïla Choukroune: A very good morning.
Very good afternoon.
Very good evening, everyone.
Everywhere or anywhere you are in the world.
Today, we have yet another fascinating episode of our Research Futures webinar with a colleague from Copenhagen, Cornelius Wiesener, who is a post-doctoral fellow at iCourts, he's going to certainly introduce himself a bit further.
As you know very well from this research futures webinars I always want to give the floor to young scholars.
I think it's very important to support their research work as it's often extremely excellent and fascinating.
So today we are going to talk about the Russian invasion of Ukraine and international law.
A topical issue, I'm afraid.
I have to tell you that we obviously take a very scientific perspective on the topic there's nothing immediately, political or controversial.
We are all researchers and scientists, so this is our perspective.
And so without further ado, I'd like to give the floor to Cornelius before that issue rules.
You note that the meeting is recorded, is going to be available on our research futures webinar website online, so if you don't want to be seen, please switch off your cameras, ask the questions.
Please use the chat box to ask your question and I will read your questions at the end of the presentation of Cornelius so without further ado.
Now the floor is yours Cornelius.
Dr. Cornelius Wiesener: Thank you very much and good afternoon.
And thanks to Leila and Tony for inviting me today, here to speak here today and many of you are familiar with this map and you're obviously familiar with or aware of the events unfolding in Ukraine these days and also for the past few weeks already.
And every day we are provided with quite grisly accounts of death and human suffering.
So you might very well ask yourself what the point in talking about the law in all that.
But matters of war and peace have always been at the very heart of international law and also international law concepts and arguments are invoked by either side of the conflict.
So that's why I would like to run you through some of the sub-fields of international law, starting with the so-called use of ad bellum, in order to discuss to what extent certain arguments hold or whether they don't hold it all.
And especially with regard to these first four points and also acknowledging the fact that international law has very poor enforcement mechanisms.
I also want to investigate partly to what extent there are some possible avenues in order to halt misconduct or at least violations accountable.
And at the very end, I would like then to focus on avenues for a peace settlement.
Obviously, I'm not going to invent anything here.
But also what are maybe some of the legal parameters that we are talking about? So to start out with the use of force or what are called the use ad bellum, back in the days it was allowed to use force since 1945 and the adoption of the UN Charter.
It no longer is the case to use interstate force under article 2(4) this prohibits even the threat of use of force is prohibited except for cases of self-defence and actions adopted under Chapter seven that usually then would require a positive Security Council authorisation.
That's obviously not really possible with regard to Ukraine, not least because France, Britain and the U.S.
members, permanent members of the Security Council and would have vetoed.
So it's not what Russia tries.
But they do however, is that they invoke or have invoked collective self-defence so claiming that like they want to protect the newly recognised people's republics of Donetsk and Luhansk because they are facing an attack undertaken by Ukraine or Kiev government.
So that's not a very convincing argument.
I think that's quite obvious to most of you, partially because those so-called states are not entirely independent.
They were basically created by Moscow.
And you can't just invade another country that already happened to 2014 set up a puppet regime and then claim that now, now you're basically fighting the war in defence of those state-lets.
The other claim that was brought forward is one that resonates with what we might call also humanitarian intervention in Western circles.
And the domestic view on that, I think this is also maybe is something that you can see on some of the law blocks that's humanitarian intervention without U.N.
Security Council resolution is not lawful.
And I'm more hesitant to rule it out entirely.
But I think the bar is very, very high.
Putin came already at the doing a press conference with Olaf Scholz, the German Chancellor, quite a few days before the invasion.
As such, he already came up with a term and said like, there's a genocide ongoing in Donbass and something has to be done about it.
So that already rings some alarm bells with me.
And obviously that also was part of his speech in order to justify the invasion on the 24th of February.
And obviously he has not provided, none of them has provided evidence from the Russian side, has provided any evidence to indicate some kind of a basis for the genocide claim.
Quite interesting is that the ICJ, so the International Court of Justice actually rendered an order for provisional measures earlier in May.
Where they said that the Russian Federation shall immediately suspend the military operation commenced on the 24th of February that the stated purpose and objective objective of the prevention and punishment of a claimed genocide in the Luhanks and Donetsk Oblast of Ukraine.
Interestingly, that sounds very much like a statement on the use of force, but the case was not initiated on the basis of the U.N.
charter.
That's not possible because the ICJ doesn't have jurisdiction with regard to matters on the UN Charter unless states have accepted that jurisdiction and that's certainly not the case with regard to Ukraine and Russia.
And so what do you basically need from the Ukrainian side is a treaty that gives you access and jurisdiction to bring the matter before the ICJ.
And the Genocide Convention is a very convenient one because on Article nine, it does exactly that.
So what they basically tried was a very inventive argument to claim that we have an illegal dispute here because Russia is claiming wrongly that a genocide is occurring in the east of Ukraine, and for that matter, because of that, they are initiating a military operation against us.
And in the end the ICJ, at least a majority with the Russian and the Chinese judge dissenting was convinced by that argument and basically brought a lot of use of ad bellum into the provision of measures, even following much more than what Ukraine has actually pleaded for.
Now this question is obviously whether that will hold or set the stage for the importance of that.
But it's pretty clear that it's very significant and very diplomatic win for Ukraine.
It can also in that through the use of bellum perspective, also look at the the Western response.
I'm not an expert in trade law or investment law, and I think that's more maybe Leila's area of expertise.
But I think broadly, one can say that all those sanctions that have been adopted of what would rarely be justified under the normal regime of countermeasures, if not the specific regimes, provide for such a possibility.
If any of the measures, including the the arms supply to Ukraine, should even go as far as crossing the threshold of use of force against Russia.
It could also be justified as a so-called collective self-defence in collective self-defence of Ukraine.
Now, if you go to humanitarian law, so what we call also the law of armed conflict or use in Belarus, so you have an armed conflict and it's the existence of an armed conflict triggers the applicability of those rules on the conduct of hostilities, for example, irrespective of who's right and wrong, whose aggressor was the victim state, all have certain rights and obligations.
Here is pretty clear now, and it was not necessarily the case earlier that we have now an international conflict that involves obviously Russia and Ukraine and therefore we have the full range of IHL applicable.
So that means all Geneva Conventions object of both.
The additional protocol is applicable.
The full the full scope of customary law that might exist under IHL the Hague regulations, as well as a lot of specialised regimes or specialised treaties with regard to cultural property and weapons, etc..
An interesting question is to what extent are other states maybe involved in the armed conflicts, not only the two, but also maybe a country like Belarus? The first one, Belarus, is obviously a fairly easy case because they provided the possibility for Russia to use their territory to launch the military operation.
So that would typically already cross the threshold of co-belligerency.
With the Western state that's en masse now provide heavy weaponry to Kyiv the question is or the answer is a bit more difficult because usually your arms deliveries would be below the threshold.
If you send troops into the country and there are some indications that maybe a British or U.S.
special forces are in Kiev, that would probably be a different story.
But I think this is maybe quite an academic topic itself.
If Russia thinks wrongly that other states are crossing the threshold of co-belligerency, that can they can at any time attack those countries anyway and make those countries a part of the armed conflict.
So the fact that Russia hasn't done that doesn't necessarily mean that, like they legally don't believe in it or not, but that they might be afraid of actually the might of nature that would otherwise be unleashed.
And the same goes maybe for Ukraine.
Ukraine has no interest in getting into a direct military confrontation with Belarus, and they're happy that most likely the Belarussian military has no appetite of actually getting directly involved.
So co-belligerency comes up a lot in some law fora, but maybe strictly speaking, that question is not very relevant.
So when we now look at some of the possible IHL violations allegedly committed by Russia, we have from the very beginning already issues with targeting groups and so certain targets were certain objects were targeted that were clearly civilian.
But even if military targets were set to be targeted we might have an issue of proportionality.
So the balancing act between what you think you might achieve from it as a military advantage and the consequential loss of civilian life, for example, if civilians are around or if there are civilian dwellings of the likes.
And even if these first two elements are met, we still have actually quite far reaching obligations to take feasible precautions.
That means, for example, that we should give warnings.
If we can expect that civilians might be hit or that we try to verify our targets.
That's in order to be positive obligations, in order to ensure that errors are minimised and therefore that civilians are spared.
But we have also seen quite grisly accounts of acts of torture, torture and then killing or people being just executed.
Quite clear cases arise then when you have, for example, people being killed with shots through the neck.
So that is not just like an accidental death due to some kind of shooting.
So that also but it is an execution and that the same goes for civilians as well as prisoners of war.
They have to be protected and their life has to be respected.
We also have accounts in the hands of thousands, apparently, of forcible deportation of civilians in the occupied areas being driven to Russia.
That's in violation of the fourth Geneva Conventions and also unlawful detentions and so-called hostage taking.
So you round up someone, for example quite a few mayors in the South and then try to trade them with prisoners of war, for example.
And I say that actually in full recognition that as an occupying power, you have quite a lot of possibilities to detain civilians that you consider a threat.
But when you look at the practise that basically journalists and community activists are rounded up just because of the activity, not because of what they individually pose, a threat like that actually looks very much like unlawful detentions.
And we also have accounts of possible violations from the Ukrainian side, mistreatment of prisoners of war, partially showing pictures and videos of captured Russian soldiers.
That's maybe how it started.
And that's something that does not that's definitely a violation of IHL, not a very serious one.
So therefore, also not another war crime, but still something that should be avoided was to save the life of the soldier and that families also from repressions.
But then more recently, we have also had some accounts of some just being shot at.
One they were already detained or even in one case of soldiers that were heavily injured basically being killed off by a few last shots and that on video.
The problem with violations of IHL is that we don't seem to have a court to go to.
So apart from war crimes.
So that could be a very serious group of of all violations of IHL we don't have a court to go to.
In terms of the ICJ, for example, as I said, that it doesn't have general jurisdiction over all cases.
It depends on what the parties have agreed upon.
And then also that it makes much more sense to actually look at human rights law because human rights law and the human rights treaties, often they come actually with their own monitoring and enforcement bodies.
So in the case, for example of human rights courts the ECHR the European convention on human rights is quite important here at least has been ratified by know something in the 40 and 40 European states, including Ukraine and Russia.
And it has also, in this case law an established practise of applying human rights and also the convention, even in times of conflict and even during military military operations abroad.
So we have quite a few cases from Chechnya, from Kurdish.
So Turkey, with regard to the battle against the Kurdish forces, but also Western states have actually had their military operations monitored quite, quite intensely.
Britain, for example, in Iraq and Afghanistan and and the like.
One challenge, however, is that we have in the recent case of Russia versus Georgia, the finding by the court that at the convention does not apply abroad to the active face of hostilities, but means actually that while Georgia was fighting the war entirely on its own territory, not basically shelling Russian territory at all.
Georgia, while fighting Russia or the separatists, had to apply the convention that limits also the life to the right to life, for example, the right to liberty at all times.
Whereas Russia was fairly free to fight and to engage in targeting operation that would be entirely unlimited by human rights law.
That's already something that a few people have commented on early.
I see the same problem with Bagorno-Karabakh, the recent war between Armenia and Azerbaijan, because all the hostilities took place on official Azerbijani territory, Armenia is basically free to do to act as it likes.
Whereas Azerbaijan has all this military operations that are being applicable or at least are being constrained and governed by European Convention, and exactly the same we have now actually with Ukraine.
So Ukraine is entirely constrained.
All its operations must be governed by the ECHR For Russia, it would only make the case to the extent that they really have control over territory and control individuals.
So killings and torture of people would definitely fall within the convention.
But shelling from long distance Kyiv, Kharkiv and many other areas would fall outside.
And that's obviously a very problematic approach.
But maybe more practically they Could they be could also consider the fact that Russia got expelled in mid-March from the Council of Europe and still means that they are bound for the next six months by the convention.
Anything that happens is basically something that victims and also other states can bring a case against Russia, but is obviously also very unlikely that Russia would even attend any of those proceedings in the future.
It is maybe possible that a time after Putin and maybe Russia is interested in a push more and also in rejoining those institutions that basically there's a lot of undone work that somehow they have to consider.
So also the costs that actually that might bring.
Brings me now to the last legal regime that I want to consider, and that's international criminal law.
So that's fields of law where the community of states considers certain social group as reprehensible, that they that they carry individual criminal liability.
So that's one of the very few areas where individuals are the duty bearers rather than maybe rights holders.
And you might be aware of the fact that neither Russia nor Ukraine are party to the ICC statute.
But Ukraine has previously filed a declaration in which it accepted the jurisdiction of the ICC.
From late 2013 onwards.
And that's exactly actually the timing of the when the Maidan protests started and also turned violent.
So to make sure that actually those events could also be prosecuted and anything that happened afterwards, including the fighting in the east already from 2014 and 15, and it was most intense.
So what is the the possible crimes that could be prosecuted? Aggression would be the most obvious case.
But you may also you might also know that, like at the beginning, the definition wasn't pretty.
There wasn't really a definition of aggression provided by the statute that only came in Kampala 2010 and only recently in 2017, I think it was initiated and only a few countries, also very few Western states have actually actively chosen, so opted in to having having the crime of aggression as a prosecutable crime within the jurisdiction with regard to that one state.
So since Ukraine hasn't done that, I don't really see a possibility that that could work out.
Genocide has obviously been invoked by Russia, by Putin.
But more recently and I told you already that I don't find that claim very, very trustworthy.
It has also been invoked by the Ukrainian side.
So here, especially with regard to events in Bucha, in some of the other places where they have found people executed, mass graves, etc., and obviously that's not in itself enough for genocide.
So the very central element of genocide is the genocidal intent.
So basically it's a plan, the intent on the part of the perpetrator to wipe out or destroy the group in whole or in part.
And this would be a protected group.
It can be national groups so Ukrainians would probably fall into that.
And then obviously certain acts have to be committed.
Killing would be one of them, but also mass incarceration in certain camps or concentration camps and miserable conditions that could also work.
I wasn't a bit I had some reservations with regard to this being possible under the ICC statute with regard to Ukraine.
But some days ago, actually, I came across some media reports from Russia that they are actually some plans, not necessarily from officials but from journalists, that it would be necessary for you to run basically a programme of de Ukraine-isation in the areas that have been occupied and and that would potentially even like give this necessary genocide intent.
So if you impose certain conditions, miserable conditions on a group in order to disconnect them from their identity as Ukrainians, that could probably be enough in order to to qualify as genocide intent in order to get across to such a requirement.
But any any of those acts and many of those things that have already listed also under with regard to IHL would most likely qualify as crimes against humanity or war crimes.
So I don't think is there is a lack of crimes that can be prosecuted.
It's a much more central question, however, is whether immunities attached.
So whether, for example, citizenship in especially Putin enjoy immunity.
And I think instinctively from the Russian side, we would be, of course, Putin and all the others have immunities.
And I think the ICC people would often then respond and say no, no, that no immunities under the ICC statute.
Article 27 says so.
Of the day, the legal issues is a bit more complex.
It's true that the ICC statute doesn't recognise immunities, but it does so only for member states because they have actively opted into the system and therefore they opted out of their immunities.
So it really depends on on what immunities we are talking about.
So otherwise it would be basically also a treaty at the expense of a third party, which is not allowed.
So we really have to look at what kind of immunity we are talking about, this functional immunity.
That is basically something that covers all officials of a country.
So even down to the foot soldier on the ground for the purpose of sovereign acts and we have an exception there for international crimes.
So functional immunity would not work if we have one of those crimes statute on especially war crimes and crimes against humanity.
The other issue is personal immunity and that's something a type of immunity, very limited and only attaching to the three people at the head of the state.
And that would be the foreign minister, the prime minister and the president, including Putin as the president and Lavrov as the foreign minister.
So for as long as they hold office, they have full immunity full personal immunity, and only once they leave office, they could be prosecuted.
That would mean that if Putin has been forced from power and is still alive, that there would be a clear chance of prosecution.
With Lavrov, it's obviously more challenging.
Much the same problem arise, but it would be probably very difficult to make that cross-dictional link in terms of also personal liability between certain acts of a committed by Russian soldiers and the foreign minister.
Because the Foreign Minister is not the commander in chief.
That's the case with Putin however.
That brings me to my last slide.
Avenues for peace settlements.
And you might be aware, you might have heard that like at the beginning there were some negotiations, very low key in Belarus and that moved then to Istanbul.
Erdogan is the host here and I think Lavrov is also participating.
So I'd just like to bring to discuss or to list some of the terms of the peace negotiations.
Obviously, an end to the fighting.
So a cease fire armistice, probably not a real peace treaty.
Also, the involvement of some kind of guarantee powers is discussed, even though I don't really know how that would play out.
Obviously they're not necessarily disclosing everything.
Then the issue of neutrality is something that has been discussed and also Zelynskyy on the Ukrainian side has said that they're willing to discuss these things.
That's definitely on the table.
No NATO membership and possibly also the loss of Ukrainian territory.
So Crimea is pretty high up on the on that list, but probably also the entire Donbas, maybe even a bigger area in the south on so Kherson, even if they achieve to go further towards Mykolaiv and and Odessa, for example, and whether it's only loss of territory and you just accept as a cease fire or whether it's even an official transfer of sovereignty, that's obviously a big question.
My question to that is, obviously, to what extent is such a treaty then also really binding? And you might know that like all writing contract law, if you're not really bound by a contract that you were forced to accept.
So element of duress.
And that's also something that is acknowledged in the Vienna Convention, especially, I think it's Article 51 or 52 that specifically refers to the use of force.
So if you are a victim state of the illegal use of force, any treaty that you might be forced to accept might not necessarily be binding.
Now, the question is like, maybe we have to look at it more from from a time window.
So I think like in the short term, there's a lot of binding involved.
And that's precisely because internationally there has an interest in finally coming to an end and the achievement of a peaceful situation.
But in the long term, I would say that like a transfer of sovereignty or even the like, ruling out the possibility for a country to at some later stage to join a security arrangement like NATO, for example.
It should not necessarily be long lasting and basically be something that you will have to ask Russia to be allowed.
But at the same time and that's maybe also something where I disagree with Deborah Ocanda from Oxford University, even if such an arrangement is not binding.
But any case, if a peaceful situation is established at this ceasefire line that crosses across Ukraine in the east, in the south.
Those lines would be what have to be honoured and it would not be possible for the Ukraine at a later stage with more armament to launch an attack again in order to recover those those territories.
That's something that Deborah Ocanda claimed and in the context of the current conflict.
But I do think that that is not sensible.
But maybe that is all something we can discuss.
And that brings me actually to the end of my presentation, and I obviously look forward to any questions or comments you might have.
Thank you.
Thank you very much, Cornelius.
Very interesting presentation, extremely rigorous.
And you've done what I expected.
You've reviewed in a very rigorous manner the different legal regimes.
Everybody I'm sure you understood, even if you're not a specialist of international law and international humanitarian law, we have about three different possibilities.
We have what we call the law of war, international humanitarian law Conelius explain that very well.
We have human rights law and criminal law, and nothing is very sure that's the least you can say and nothing is very clear.
And, of course, you have the possibility of a peace settlement as you explained at the end, we are going to receive a number of questions just going to use.
But don't you think that's beyond the legal regimes that you've explained very well, there's a pragmatic element here, and the pragmatic element is going to depend on who wins or doesn't win the war, because we've seen that in past conflicts.
You know, it's easier to sue from sort of a pragmatic realpolitik, to sue a weaker state than a state like Russia, which is still a superpower.
Can you ask the question again.
And my question was a bit of a real policy, you know, a realistic type of approach, don't you think that whatever happens legally speaking, that depends on the conflict itself and how it ends, who wins the war? Because if indeed Russia wins, it's slightly difficult to bring it to court, whatever, you know, it has whatever has happened, we've seen in the past that it's much easier to establish special tribunals.
I'm talking about Rwanda, former Yugoslavia, Lebanon and so on and so forth.
We're left with countries that use for large countries.
Mm hmm.
Okay.
So a bit more a realism perspective to that.
Yeah.
I mean thanks for the question.
And yes you're entirely right.
I mean if Russia wins the war to the extent that they've basically managed to occupy the entire of Ukraine, topple the government, then for for quite a few of the procedures I was talking about earlier, you at least don't have a Ukrainian state any longer that can initiate that, right? You can obviously have a government in exile.
And we have during World War two of example were good examples of that the Polish government was sitting in Britain and so was the Norwegian government.
Charles de Gaulle, even though, was at that time, not yet, maybe the government in exile because you had Petain, but that's obviously always an option.
The other question is also like, I mean, Putin is nearly 70 years of age now.
He might have some serious health issues of why do we bother even discussing criminal liability if he might be dead by next year? So this might be something that most of the Ukrainian was much more applaud than having seen him in court in the end, or he might actually be toppled and basically suffer a violent death.
That's all maybe like in very practically is a term something that's somewhat constrained the of the applicability of the law.
But yes, I mean, Russia and what they show now is basically a disengagement with policies of the Western world, as it was earlier, for long time, that have actually held up in the Council of Europe.
Surprisingly, they taken a lot of.
Findings like a lot of judgements by there were basically findings that they had in violation of the ECHR.
Often in many cases they actually paid most cases actually that were lodged in the entire Council of Europe system against Russia.
And I think the second one is Turkey.
So from their perspective, they might always have thought actually that this entire thing was rigged against them, basically, and decisions were taken always in favour of Western states.
So basically what we see now is like a disengagement with institutions that are important to the West, not necessarily only including Western states.
And at the end of the day, yeah, I mean, after World War Two, obviously we have like the entire U.N.
system is written basically by the victors.
Right.
And that's something we perfectly accept.
I'm not so sure, actually, whether that would necessarily be the case now and even what looked during World War Two like intermittent victory for Germany basically led to the total collapse of Germany in the end.
So even if Russia is somewhat victorious now and even can force Ukraine to accept a treaty which is both unfair and even according to me and maybe me, maybe other international law is not even very legally binding, but just because of their the sheer military power, they can basically enforce it on Ukraine and maybe on some of the neighbouring states.
And that doesn't necessarily mean that it will always be like that.
Including look at the the annexation of of the Baltic republics, something that was accepted in the late 1930s, first of all, agreed upon between Nazi Germany and and the Soviet Union.
And then the West didn't really talk about it very much.
In 1945, they just accept that this was not the Soviet Union.
But in 1991, they tried to reinvent basic independence, claiming that it had never stopped.
So even I think injustices of that proportion can maybe in the long run, be readdressed somehow, or that can be addressed by the legal system.
And I do think that even in the long run, we have some kind of continuity.
It doesn't mean that we have one side that is winning for a few years and therefore the entire international order is somehow replaced.
That's not what I see.
And also, when you look at the how in the General Assembly for example how most nations voted or how outspoken for example, countries like Kenya were about like borders.
Even those that were inherited, even those that are colonial, are something we have to accept because we are all interested in world peace.
And that's maybe something else.
It's not only that, it's a few native states that basically have a very strong view against Russia's actions.
But it's actually the world community minus, I think, the four loyal followers of Russia.
And then you have a lot of countries that are somewhat neutral, including South Africa, for example, because they are, for foreign policy reasons, afraid of taking a side.
But I wouldn't overestimate that's actually the end of our legal system, of our legal order the way we know that is now being shaped by actually one aggressor, and we all have to accept it.
Thanks.
Excellent.
Thank you so much Cornelius yesterday we discussed the question of legal order and I said to the group that I didn't believe in a legal order.
I don't think it really exists.
But that's That's another question.
Let's go back to to this question, if you wish later.
For now, we have an excellent question from Tony.
Thanks, Cornelius.
I was wondering how international trips to former Georgia territories, Georgian territories, [inaudible] in case they engage in the hostilities.
Mm hmm.
Yeah, good question.
I think I would put a big question mark on the now independent states.
There they are, they claim to be independent.
And Russia already recognised them, I think, in 2008, right after the hostilities.
But they are pretty much what we call puppet states of Russia.
I personally even visited one of them on a beach holiday because I could do so with a Russian multi visa, something that would usually carry a fine message if the Georgian authorities find out about that.
But.
If they now chose to intervene in the conflict from the Southern caucuses is obviously quite far.
If they wanted to fight Ukraine this very far, what most likely would happen is that you might have quite a few volunteers that might actually join the Russian ranks.
And this is not a new thing because we see the same thing with Syrians being recruited en masse.
If it's partly maybe because of ideological reasons, they would be people that have previously fought for Assad and they know that they can earn 20 times as much if they fight for the Russians than if they continue their job for Assad in Syria.
So that's something that they can do if they now as fully detachment basically with Abkhazia or South Ossetian flags, basically join the fight.
That would still be something like a that would still be somehow attached to the Russian army.
It would definitely not be a non-international conflict.
The status is maybe a bit different for the so-called session separatists in the east.
So in the two people's republics.
At least until until the beginning of the invasion.
I believe I would consider this to be a non-international armed conflict.
I mean, Ukraine would always claim that these are anyway just like puppets and the puppet regime of the of Russia.
And there's some kind of link.
But like if you apply the normal attribution test of like effective control, you would probably not have that in order to make them agents of Russia assumption.
And therefore you could maybe make a claim that like it maybe still be something like a non international conflict at the same time as an international conflict.
Or maybe more relevant, even since they also all had Ukrainian citizenship, you could make a claim that even though they are captured maybe in an international conflict, they are not given combatant status or combatant privileges and could be held accountable for even totally compliant acts.
Even if they're only foot soldiers, they can be held criminally responsible for fighting Ukraine.
And that's exactly what you can usually do also in an non-intentional because you don't have that kind of status between between the belligerents.
But obviously, what they could also do is just like that, they start the war again against Georgia.
Right.
And then it's a question, what kind of conflict that is probably a non-international armed conflict, together with an international armed conflict with the Russians is a question whether they're politically and militarily interested in them, because I think they have managed in 2008, during these few days in August, they managed to get all the territories that they wanted to fill up some of previously part of their Abkhazia Oblast or republics, I think in the Soviet system.
So there's very little there's very little advantage in basically extending the border further, because that could just mean that you somehow get into more territory where they're reporters living.
So either you have to expel them.
So that means that some of it's another series of violations of IHL human rights law, all you have to live with them and that maybe then you think that's a security threat or not this often.
And the reason why they basically engaged in those repressive acts of like burning down as they have done previously.
So I don't think that would necessarily happen.
But we see that a lot of people from the Caucasus and both from the Southern Caucasus, these republics, but especially from Chechnya, have joined and that that what's going to happen as in the ranks of the Russian army.
I hope that answers your question.
I hope Tony it answers your question, I'm sure Tony is going to say yes.
So, Tony, feel free to take the floor if you need additional precision.
Let's go back maybe because I think this is something which has been very much in the news for good and wrong reasons.
Let's go back to the notion of genocide.
You explain very well that there is sort of smart way to use a certain legal regime, maybe another one as well.
In particular, humanitarian Law.
All right.
So can you also explain why you think although the crimes which have happened or we think have happened are extremely severe, grave violation of international law is not genocide.
It doesn't mean that it's not as important or it doesn't matter.
But why is it not genocide.
You think? Or maybe you think it's genocide? I personally don't think so.
Mm hmm.
Now, thanks for the question.
And someone was so kind, I think Leila it was you, right? Sharing with us the the definition of genocide as final an article one of the genocide convention.
But it's also in Article six of the ICC statute.
And here we have at the very beginning this so-called chapter.
The contracting parties confirmed that genocide, whether committed in time of war and time of peace, is a crime.
Oh, sorry, sorry.
It's it's it's a second one.
In the present convention, genocide meets any of the following acts committed with intent to destroy in whole or in part a national ethnic, ethnical racial or religious group as such.
And then you have another chapter with these five acts through which you can do that.
So any of them then would be enough, for example, forcibly transferring children of the group to another group.
That's something that happened in Nazi Germany that takes up from blonde, blue eyed kids of Czech parents, for example, and give them to Nazi parents that couldn't have children, for example.
And by doing so, but in the long run, also something that could maybe lead to the to the end of that affected ethnic group.
And you also have measures, for example imposing measures in and to prevent births within the group that would also be forced pregnancy, assault, mass rapes.
That then leads to women getting children with fathers from the opposing side, for example.
And that would then basically break the genetic lineage, but also an especially tradition of family set rules to make sure that, like the families would not reunite because maybe the original husbands would reject them.
That's something that we we've seen both in the former Yugoslavia, but also especially in Rwanda.
So.
So and then obviously more.
Easier points, obviously, like when we have cases of of killing and and putting people into in camps.
And also the punishment for example, the most important thing is always and that's a big challenge this the chapport requirement we need the genocide intent and that is that can be in part.
So you don't need to think with your genocide plan that you can wipe out an entire group might anyway be a small group, but like also going after only part of the group might be enough.
But you need to have the intent to to destroy that group.
Now, Srebrenica is, for example, a good, good case where the May population have been rounded up at that time, and women and children and the elderly were like shipped off in buses and the men were gunned down.
Essentially, some of them tried to escape.
And then you get more like a chase and killing.
But many of them were basically lined up and killed.
And we I can't remember the exact number, but I think around 4000 and the number doesn't matter very much.
But it's a question whether the killing of of of may population with between the ages of 15 and 60 in that regard actually can be considered to be an attempt upon an attempt in order to wipe out the group.
And the ICC the still on the Christian case said yes and I think the ICJ accepted it when they had the Bosnia genocide case.
But there are many people, including me, that are a bit more reserved and saying like, this is clearly a war Crime might also be a crime against humanity.
Whether we really have the genocide intent is another question.
It is nothing in order to undermine the importance of Srebrenica and also the failure of the Western soldiers, for example, to prevent it as the question.
I think any victim group would like to be the victim of genocide because that somehow brings you immediately more recognition, also caused more headlines.
And also hopefully it will cause some kind of reaction.
Even some people claim that like all the other states have to do something.
Yeah, they have to do they have to do something to prevent it, to stop it.
But it doesn't mean that, like if genocide happens in Ukraine right now and if Bucha or anything else that we don't know is actually something that can be considered a genocide, that this would then mean that we have to the rest native countries, whatever, has to a military entity.
So you don't have to.
Its a question whether they nevertheless want to do that.
So but as I said, like if there's a real plan hammered out in the Kremlin that like there should be a intense campaign of de Ukraine-isation.
Yeah, well, I'm not so sure.
I mean, that could very much sound like basically a genocide plan.
And it doesn't it also doesn't really matter whether it's interesting thing also about genocide, but you can even commit genocide by planning so.
So even the attempt is this is a crime.
So it doesn't necessarily need like 10, 100, 1000, 10,000 victims.
So even even the attempts can be or even incitement to that can be enough.
And that somehow also sets it a bit apart from crimes against humanity where you want some kind of pattern at least.
And these with war crimes, you have at least the seriousness of this also definitely the incitement and and the attempt is not enough.
Good question I hope that was a good answer.
And we have still a few minutes left.
Exactly.
There was excellent.
Of course, your answer was perfect.
We have two more questions I was going to ask you about crimes against humanity, but to some extent, you've responded already.
So let's stick to 2 last question from Richard first.
So pickin up Leila's rational realpolitik point.
Is a peace treaty a bad idea from Russia's point of view on the basis that Ukraine will plan to denounce it at some time in the future? So is that an incentive for Russia to fight the Ukrainians to stand still? And de facto incorporate Crimea Donbas etc to Russia.
Obviously that would be immoral genocide etc but might the possibility of denouncing peace treaties as an equal unfair seems to encourage that? Perhaps that is necessarily the case that international assumes people will not behave too wickedly.
Well, no, I don't think we assume that.
But what do you think about the sort of realpolitik approach or a realpolitik approach to a peace treaty? Well, I think anyone that wants to take a victory home from the battlefield and can come home with a piece of paper that somehow looks like a contract like treaty will always be more happy than just like having some critics, some kind of a statement and thinking that like that will be enough in order to, to to somehow keep the status quo.
But.
Yes.
I mean, my argument basically puts a big question mark behind the continuous legal value of any peace treaty.
Right.
And now you have to say most of the peace treaties, because most wars these days don't end in peace treaties.
So they somehow end the stalemate Pakistan, India, for example, they never made a peace treaty.
We don't know even whether real boundary is.
Look in the Middle East, for example.
But so Israel, Palestine and all the other Arab states.
But when you so most of the peace treaties that we are talking about come basically from World War Two.
And that was at a time when there was at least a non use of force was not a recognised as much of a sort of colloquial patriot, but it didn't necessarily mean the length entirely impossible to be given territory maybe after a war, especially when you thought that the other side was wrong in the way that Russia, for example, did.
So Russia got Kaliningrad from Germany.
Many areas of Poland was moved to the to the West and etc..
And also, like some of the other countries in the Balkans, lost territory in line with that.
I don't think that this is something that is admissible any longer.
And also, maybe in this context, I can tell you just before the war started, I was involved in a heated debate in Denmark about the status of Bornholm, the little island.
That is a bit further towards, Sweden somehow strategically very well positioned and just in the run up to the war, basically.
Denmark said they will now change or break with a long tradition of not having foreign forces on their territory.
And they will make an agreement with the Americans so that they can use it as can have bases, but especially also uses in order to launch operations.
So if there's a war that you can basically easily fly in things to Denmark, then another question was were the same also applied to Bornholm.
Access Yes, Russia came, they say like no, no.
In 1946 when we had occupied Bornhome and we were withdrawing, you promised us that like this would never be a place for foreign forces, especially Western forces can be based.
And there was a question like, what did they really say? And in the end, we could conclude that no such agreement was made.
And my point in this context was also that like even if Democrats had left because they wanted the Russians off the island of Bornholm had agreed that like of course, we will never station any foreign forces on our territory.
I think that treaty would not be valid any longer for such a long time, precisely because it was in a situation of duress, the occupying power being Russia at that time.
And and the context was a very different one.
So some are putting fundamental change of circumstances and duress together.
I think that would give you the result that that doesn't really fly.
And it wouldn't be the same thing, I think, if Ukraine were not to accept something maybe for the first five years, I would say that does make sense, but maybe not for eternity, not for the next few decades.
And both in terms of taking territory, but also barring a country like Ukraine from freely deciding which international orginisation or even security arrangements to to to join.
And I hope that answers this question.
Now, maybe the other question was.
Do you not think Putin's actions have more historical reasons than the two you gave? The last question.
So so I mean, reasons or justifications, I'm not entirely sure.
But I think, like, if if only I mean, the two reasons I gave were basically once that a Putin invoked or Russia invokes in order to justify their operation.
Yes.
I mean, obviously, if they question and that's something he has already done last year when he wrote a long essay the non-existence of Ukraine or that Ukraine is not a real state, that it was a mistake on the part of of Lenin to even give statehood.
So statehood within the Soviet Union.
Right.
So Soviet Ukraine was somehow running its own show.
And then they together with Russia and Belarus.
And then also there was a Caucasian Soviet republic.
And I think that was also one in Central Asia, they all then created the Soviet Union, right? So this was how it was created.
And also when the federal level disappeared in 1991, basically it broke into these sub pieces and then some of those sub pieces had like sub-sub pieces.
And then this like for example, Crimea was an autonomous republic within the Ukrainian Soviet republic.
Right.
And then also for long time also claimed that like maybe they shouldn't be part of Ukraine.
And the same is actually with Abkhazia and South Ossetia.
Right.
So that's part of actually why we have those conflicts.
Yes, that's that's definitely one of one of the reasons as a historical one, you can even go further and say like.
In the in the in the Russian history.
I also this this idea of being the third Rome, right.
The first Rome being Rome and then the second one being Constantinople Byztine.
And then and then later on Istanbul.
And then even before basically Istanbul was lost to the Turks.
So the Ottomans and the Russians took over and basically could claim then their own empire and this entire history right or line of history Kiyiv is super important.
So it started with the Kievan Rus also Kherson is important and and also the the the the unity of the of the Russian Orthodox Church for a long time a big chunk of Orthodox people in Ukraine where part of the Russian Orthodox Church.
And that's something that changed actually after 2014 I remember it was a longer process, but I think it somehow they they had a split in 2019 where they basically applied in Constantinople to become their own Orthodox Church.
So now this Ukrainian Orthodox Church.
And apparently that's something that's one of the main reasons why the entire Russian Orthodox leadership is so much behind Putin.
That's one thing.
But then the other one, there's also, like any country that is drifting westwards politically and in terms of of values, also says yes to anything that they consider decadent to the West.
To be making even issues of homosexuality negotiable, for example, is something and a known awful for Kirill the leader of the Russian Orthodox Church.
So I think you can have a lot of those things in the and maybe they actually carry much more weight for someone like Putin who sees himself actually maybe in a very different role than the law.
He's a lawyer and he has even written, I think, a PhDthesis also in law.
But I don't think that he thinks very much as a lawer anymore.
And I think that the law is basically just a tool in order to use power.
Right.So I hope that answers your question.
Yes we see Ralph so hopefully that's also fantastic.
And I was going to say in a similar manner.
Yeah, yeah.
That's what I wanted to bring out.
But it is does not legal the issue.
They are more political and the historical background and the legal issue that is relied on, which is just brought out clearly.
.
I should say.
Thank you so much, Ralph.
Thank you so much, everybody, for listening so attentively to this very rigorous, very well prepared and very interesting presentation by Dr.
Cornelius Wiesener and I thank you very much to my team as well, He and Shaz in particular for moderating and organising the meeting.
As you know, I'm Leila Choukroune, professor of international law, director of the Democratic Citizenship Theme at the University of Portsmouth.
So I'm sure Cornelius you have publications and more publications to come, not necessarily on this very precise topic, but around the questions of indeed humanitarian law or genocide ,crimes against humanity.
So check out the publication of Cornelius.
I'm sure they're all very enlightening and for all of you.
So thank you so much again.
And well, we'll see you very soon.
Thank you was a pleasure.
Pleasure, indeed.
Thank you very much.
Bye everyone.
Thanks.