This article belongs to the debate » Ukraine, the European Union and the Rule of Law
19 December 2022

Will Russia’s War Kill the Rule of Law in Ukraine and Europe?

The EU and prosecuting war crimes

Eight years after Russia illegally invaded and occupied Ukraine’s Crimean peninsula in February 2014 and then illegally annexed it the following month (see Executive Order on Recognizing Republic of Crimea of 17 March 2014 viewable online from Czechia, Russian Federation and certain other countries), Russian President Vladimir Putin announced on State TV in the early morning of 24 February 2022 that he was about to launch a ‘special military operation’. He declared that the operation was intended “to protect people who have been subjected to bullying and genocide … for the last eight years”, to “strive for the demilitarisation and de-nazification of Ukraine” as well as “to bring to court those who committed numerous bloody crimes against civilians, including against citizens of the Russian Federation”.

Within minutes of Putin’s 24 February 2022 speech, Russian armed forces invaded Ukraine from several sides, using a ‘cauldron’ military maneuver (a variation of pincer operational movement). Russia attacked Ukraine’s North (from Belarusian and Russian territory), its East (from Russian-proxy-held Donetsk), its South (from Russian-occupied Crimea) and its coastline from Mariupol to Odessa (amphibiously from the Sea of Azov and Black Sea) to try to overwhelm Ukrainian armed forces. Kharkiv, Senkivka, Donbas, Kyiv and many other civilian and military centres were hit with ballistic and cruise missiles on the first day of the war. The same day, Russian forces tried to take Kyiv’s Antonov (Hostomel), Sikorsky and Boryspil airports in an effort to establish air superiority and secure supply lines, push into Kyiv’s center, decapitate the democratically-elected Ukrainian government, and install a Moscow-directed puppet regime in its place. Ukraine’s President Volodymyr Zelensky responded by immediately declaring martial law (Presidential Decree No. 64/2022) and rallying the country’s armed forces to fight the aggressor.

Putin had apparently expected to take over Kyiv and dominate Ukraine within 2 days, which, at the time, seemed quite realistic given Russia’s enormous operational and tactical advantage. The United States Central Intelligence Agency predicted it would not take more than 4 days for Kyiv to fall. Russia is more than 28 times the geographic size of Ukraine. Russia’s population of 143 million vastly outnumbers Ukraine’s 43 million and its active-duty military personnel outnumber Ukraine’s by almost three times. On 15 May 2018, Putin had personally inaugurated the Kerch Straits Bridge, Europe’s longest bridge spanning 19 kilometers, linking Russia’s Krasnodar region (an important infrastructure base for the Russian Navy’s Black Sea fleet) to Russian-occupied Crimea, which ensures a direct Russia-Crimea military supply line, even if vulnerable to attack.

The US Government offered to evacuate Zelensky from Ukraine on 26 February, but according to the Ukrainian Embassy in the United Kingdom, Zelensky responded that “The fight is here; I need ammunition, not a ride”. Instead of fleeing Ukraine, Zelensky rallied Ukrainian troops to fight and urgently appealed for international assistance. During the first weeks of the war, it still seemed likely that Russian forces would seize most or all of Ukraine’s coastline from the Sea of Azov to Crimea and westward to Odessa, enabling them to isolate the rest of Ukraine from the sea and eventually occupy at least two-thirds of Ukrainian territory, despite Zelensky’s courageous and defiant stand. Step-by-step however, Ukrainian forces took full advantage of Putin’s hapless strategic, tactical and logistical blunders, and staged a series of well-executed counter attacks, supported by NATO, US and EU weapons, logistics and advice, trashing Putin’s plans of quick regime change. By late November 2022, Ukrainian forces had recaptured much of its territory that was lost to Russian forces in February and March, and they had gained enough momentum to turn the Russian offensive campaign into a hasty and disorderly retreat from many points in eastern Ukraine, including the strategically important regional capital Kherson. Four sites were discovered where apparently Russian forces had tortured Ukrainians during Russia’s occupation of that area.

Putin’s War Strikes at the Heart of Democracy, Human Rights and the Rule of Law in Ukraine and in Russia Itself

In its 18 October 2022 report, the UN Human Rights Council’s Independent International Commission of Inquiry on Ukraine noted the impact of explosive weapons in civilian areas, indiscriminate attacks, deliberate Russian positioning of troops or equipment in residential areas, Russian armed attacks on fleeing civilians, “summary executions, torture, ill-treatment, and sexual and gender-based violence, unlawful confinement and detention in inhumane conditions, and forced deportations” as well as wounding of persons protected under the Geneva Conventions. On 14 October, Pramila Patten, UN Special Representative of the Secretary-General on Sexual Violence in Conflict underlined that “When women are held for days and raped, when you start to rape little boys and men, when you see a series of genital mutilations, when you hear women testify about Russian soldiers equipped with Viagra, it’s clearly a military strategy” and “a deliberate tactic to de-humanise the victims”. The Special Representative referred to over a hundred confirmed instances the UN had verified since the war began and she noted that victims of sexual violence ranged from 4 to 82 years of age. There can be no doubt that millions in Ukraine will suffer severe, long-term and inter-generational trauma from the death and destruction. On 22 November 2022, UNHCR indicated that the number of refugees recorded across Europe had reached 7.9 million Ukrainians and that some 6.9 million Ukrainians were estimated to have been displaced inside Ukraine, which together comes to just over one-third of Ukraine’s 43.8 million suffering forced displacement.

It is one thing to conduct a short military operation to make a point, settle a border dispute or carry out a so-called ‘surgical strike’ on ‘terrorists’, and quite another thing for an aggressor to deliberately perpetrate a widespread, sustained and systematic attack on the civilian population. On 8 October 2022, Putin made army general Sergei Surovikin, infamous for his brutality in Afghanistan, Chechnya and Syria, commander of all Russian forces in Ukraine. Under Surovikin’s command, Russian forces launched hundreds of missiles that knocked out 60% of Ukraine’s civilian energy and power grid as the weather across Ukraine turned colder by late November. Russian forces and mercenaries seem to have intentionally, persistently and systematically inflicted the most cruel of atrocities upon Ukrainian civilians, apparently without any fear of prosecution from Russian military authorities, which strongly suggests that war crimes have been instigated or at least tolerated or ignored from Russia’s chain of command.

Russia’s campaign to destroy Ukraine and terrorize its population constitutes nothing less than the most blatant and direct attack on the international rule of law and the most fundamental human rights and freedoms of all of Ukraine’s people. Aggression is the most serious violation of the Charter of the United Nations that negates the UN’s primary purpose to maintain international peace and security. The crime of aggression also violates the Rome Statute of the International Criminal Court which, jurisdictional issues aside, mandates criminal prosecution of anyone, regardless of official rank or capacity, even a Head of State, who may be responsible for committing or ordering to be committed aggression, or for that matter, war crimes, crimes against humanity or genocide. These crimes are well defined not just in the Rome Statute, but in general international law, and their prohibition forms part of jus cogens that peremptorily binds all members of the international community without exception, begging the question of criminal accountability for Putin and his cohorts. All this makes Ukraine’s complete and full cooperation with the Prosecutor of the ICC to investigate all Rome Statute crimes, regardless of who may have perpetrated them or against whom, all the more essential. In a 25 September 2022 speech to the UN General Assembly, Czech Republic Foreign Minister Jan Lipavsky called for Putin to be prosecuted by the International Criminal Court, or if necessary, by a special international tribunal for the crime of aggression and war crimes. Lipavsky’s reiteration of this proposal on 6 November seemed to have struck a raw nerve in Russia, judging by Russian Foreign Ministry spokeswoman Maria Zakharova’s shrill response on Telegram: “Start with yourselves. Iraq with remnants of Libya will give recognition to active repentance of the West. Serbia also, by the way. The immune ones, when do you plan to administer justice for yourselves?” in a feeble attempt at ‘whataboutism’.

Putin’s ill-conceived ‘special military operation’ not only attacks the rule of law in Ukraine, but also the rule of law throughout the Russian Federation. First, Russia has severely restricted and punished freedom of assembly, freedom of speech and independent media, locking up thousands of protestors and journalists across Russia for opposing or criticizing the war, and even for referring to Putin’s so-called ‘special military operation’ as a ‘war’. On 20 October 2022, the UN Human Rights Committee noted that “there had been thousands of cases of harassment and persecution of journalists, and dozens of murders and attempted murders” and that “[j]ournalists had also been abducted and tortured” while there “was no information that these cases had been effectively investigated”. The Human Rights Committee noted that “[h]undreds of Russian journalists had been detained for reporting on the war in Ukraine or protests about the war” and that “a growing number of journalists, lawyers and Russian dissidents had been targeted, murdered, or detained by Russian forces”. Second, Putin’s ‘partial mobilization’ (i.e. forcible military conscription) brought the Russian war in Ukraine home to citizens in Russia. By throwing Russian conscripts, untrained, inexperienced and ill-equipped, into combat against well-trained and battle-hardened Ukrainian men and women soldiers who have shown great determination to save their own families, homes and homeland from destruction, the Kremlin not only weakened the morale of its own armed forces, but spread disgust within much of Russia’s public. Many Russian citizens, perhaps apathetic or cynically acquiescent of Kremlin war policy, found they suddenly risked losing loved ones at front lines in a senseless war with Ukraine. Conscription scared hundreds of thousands of military age men to flee Russia for Turkey, Kazakhstan, Kyrgyzstan, Tajikistan, Uzbekistan, United Arab Emirates, Greece, Bulgaria, Serbia, Georgia, Switzerland, Finland, Mongolia, Cyprus and many other countries, to avoid possibly dying for a cause they don’t support. Russia’s Federal State Statistics Service (Rosstat) estimated that the number of Russians departing Russia (including tourists and business people likely to return) reached 8.5 million in the first half of 2022, an increase of 25% from January to June 2021. The war also spurred brain drain and massive flight of capital from Russia into Dubai and other places. Widespread protests in Russia forced Putin to end conscription on 31 October 2022. While conscription may have been terminated for now because of ‘mistakes’ that Putin admitted in a televised speech had occurred, the arbitrary way in which many Russian men seem to have been snatched and hustled off to war and that recruited members of ethnic minorities first, risks weakening Russian confidence in the integrity of their own public institutions, although by how much remains an open question. On 4 November 2022, a new law entered into force which Putin had signed a few days earlier that offers prisoners convicted of murder amnesty from their sentence, plus salary and payment to family upon death, if they agreed to serve in the Russian armed forces. Russian mercenary groups, such as Yevgeny Prighozin’s Wagner Group reportedly offered a similar deal.

Putin’s War Threatens the Rule of Law in Europe and the World

Putin’s senseless violence threatens the rule of law beyond Ukraine and Russia for several reasons. Protracted war risks spilling beyond the national borders of Ukraine and the Russian Federation. It affects neighboring countries and regions and undermines human security, even far from the battlefield. Peace, justice, universal human rights and human security are indivisible in the sense that our individual lives are interdependent with everyone else’s in one way or another and regardless of where we live. The indivisibility of the human condition is not at all an abstract, metaphysical or esoteric concept. The World Bank noted that the war impeded post-pandemic economic recovery in emerging Europe and Central Asia. In August 2022, the UN estimated that the war increased the number of people around the globe suffering acute hunger to 47 million, pushed 71 million into extreme poverty and precipitated a global energy crisis that hurts the more vulnerable the most. If that were not bad enough, Putin’s thinly veiled threats to use nuclear weapons, coupled with the Kremlin’s clumsy attempts to spread false flag rumors that Ukraine planned to set off a dirty bomb, conjure up nightmare scenarios of retaliation, escalation and all-out nuclear catastrophe and spread fear across Europe and the world.

Whatever sense of complacency governments may have had since 2014 about Kremlin intentions towards Ukraine instantly evaporated on 24 February 2022. Many European governments, particularly of the Baltic States, expressed fears that their countries could be next in line for Russian aggression. Each one of the frozen conflicts featuring unwanted Russian interference, namely Moldova’s