IBA calls for independent investigation into Russia’s military intervention in Crimea amid violation of the UN Charter

The  International Bar Association  (IBA)  condemns Russia’s  incursion into Ukraine as a violation  of the United Nations (UN) Charter and calls for an independent international investigation into the matter. 

 IBA President Michael Reynolds said, The longstanding principle of territorial integrity is enshrined within the UN Charter, and underpinned by the inviolability of  borders and state sovereignty.  Russia’s military intervention in Ukrainian territory without consent violates those principles and is a clear breach of the UN Charter”. He added,  “Ukraine’s  sovereignty and territorial integrity must be respected”.

On 1 March 2014, Russia’s  Parliament  convened  a  special  session  and  approved President Vladimir Putin’s  request  to  send  troops  into Ukraine. Russian soldiers have since occupied airports, communications hubs, and Ukrainian naval headquarters, and  have surrounded Ukrainian  military  bases in the Crimean Peninsula.  In response to these provocations, Ukraine has mobilized its military and remains on full alert.

 IBA Executive Director Mark Ellis said, “Ukraine is a sovereign state; Russia, as a UN Member State, is bound by the UN Charter’s prohibition on the use of force against it. The prohibition against force has only three exceptions: when authorized by the UN Security Council under Chapter VII; when there is consent from the territorial state; and when it is in self-defence.

The first two exceptions do not apply in this  case, as the  Security Council has not issued a Chapter VII resolution authorising Russia to use force, and Ukraine has not consented to Russia’s military  intervention. The third exception of self-defence applies only in response to an armed attack. Ukraine has not perpetrated an armed attack upon Russia and accordingly Russia cannot employ the self-defence exception”. Quoting Article 2(4) of the UN Charter Dr. Ellis added, “International law is highly proscriptive of the use of force against another state, stating, “All Members shall refrain in  their  international relations  from  the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with  the Purposes of  the United Nations” He concluded,  “Deploying one state’s armed forces into  the territory of  another state without consent falls within Article 2(4)’s prohibition”.

Russia claims to be acting in accordance with international law, citing a  threat from ultranationalists and the duty to defend Russian nationals in Ukraine. While a “defence of nationals” concept has been invoked before in international law, this has been in situations where a state’s nationals are under direct attack,  taken hostage, or generally in a situation threatening grave bodily harm. There has been no such threat to Russian nationals in Crimea. Even if Russia’s version of recent events in Ukraine is accepted  –  namely, the seizure of power by  “fascists and ultra-nationalists”, threats of violence against ethnic Russians and

Russian religious sites, and threats to Russia’s national interests – these are not, either singly or collectively, recognized grounds for the violation of another state’s territorial sovereignty or for deploying armed forces on that state’s territory.

At the emergency UN  Security Council  meeting on Ukraine on 3 March 2014, Russian Ambassador Vitaly Churkin read a statement from  Ukraine’s ousted  President,  Viktor Yanukovych,  who  requested President V. Putin  deploy  armed forces to restore peace to Ukraine. However, Article 85(23) of  the Ukrainian Constitution explicitly confers the power to approve the presence of foreign troops on Ukrainian territory  on  the Verkhovna Rada (Ukraine’s  Parliament)  and,  therefore, Mr. Yanukovych  did  not have the legal  authority  to invite intervention. 

The request from the Chairman of the Council of Ministers for the Autonomous Republic of Crimea also does not constitute a legal basis for intervention, as Crimea derives its legal foundation as an autonomous republic from the Ukrainian Constitution and Ukrainian law, which also specifically provides that Crimea is within the administrative and territorial structure of Ukraine.

Apart from the general principles of international law, by  signing  the  Memorandum on Security Assurances, in Budapest on 5 December 1994, Russia (along with the United States and the United Kingdom) expressly accepted the obligations in a legally binding instrument “to respect…  the independence and sovereignty and the existing borders of Ukraine”  and “refrain from the threat or use of force against the territorial integrity or political independence of Ukraine”.

Apart from the general principles of international law, by  signing  the  Memorandum on Security Assurances, in Budapest on 5 December 1994, Russia (along with the United States and the United Kingdom) expressly accepted the obligations in a legally binding instrument “to respect…  the independence and sovereignty and the existing borders of Ukraine”  and “refrain from the threat or use of force against the territorial integrity or political independence of Ukraine”.

Mr. Reynolds concludes, “Another  relevant principle of international law is the simple point that the UN system, created in the aftermath of World War II, is one of avowed collective security. Under that system, the UN Security Council has primary responsibility for monitoring, and reacting to, threats to world peace.  Russia, like its fellow permanent members of the Security Council, has a special role and degree of responsibility in maintaining that system of international stability”.