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Title: The Impact of War and Extraordinary Situations on Law in the Context of Agression against Ukraine

The Impact of War and Extraordinary Situations on Law in the Context of Agression against Ukraine

by Patrick R. Hugg (Volume editor) Dmytro Luchenko (Volume editor) Lyra Jakulevičienė (Volume editor)
©2024 Edited Collection 462 Pages
Law, Economics & Management
Open Access

Summary

This book is primarily designed to address the legal challenges arising in international law and selected fields of national law, both as a result of Russia’s war of aggression against Ukraine and, more generally, other extraordinary situations. The focus of the research is the national and international legal frameworks in selected fields, specifically the transformation of legal norms and changes in their application during emergency situations. The authors examine the values underlying these laws in the context of war, challenge existing legal approaches in international law during emergencies, and evaluate the relevance and transformation of legal regulations in Ukraine as they respond to the changing circumstances in the state and society due to the war.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • This eBook can be cited
  • Contents
  • Foreword
  • Acknowledgements
  • Introduction
  • Abbreviations
  • Chapter 1. Role of Values, Identity and Human Rights in the Context of Armed Conflicts and Emergencies
  • 1.1. Polysemy of Human Dignity in the System of Legal Principles
  • 1.1.1. Context
  • 1.1.2. Kant’s Concept of Dignity as the Basis for the Hierarchical and Dynamic Character of Dignity in the System of Legal Principles
  • 1.1.3. Dignity as an Axiom of Law: The Hierarchical Dimension
  • 1.1.4. Dignity in the Evolution of Jurisprudence: The Dynamic Aspect
  • 1.1.5. The Gap Between Hierarchical and Dynamic Aspects of Dignity as a Characteristic of Democracy
  • 1.1.6. Interim findings
  • 1.2. The Complexity of the Value-Based Approach in Legal Interpretation
  • 1.2.1. The Necessity of (Re)considering the Value-Based Approach in Legal Interpretation
  • 1.2.2. The Variety of Methods of Legal Interpretation and Their Interplay
  • 1.2.3. The Content of the Value-Based Approach in Legal Interpretation
  • 1.2.4. The (Im)possibility of Resolving a Conflict of Values
  • 1.2.5. The Value-Based Approach in European Jurisprudence
  • 1.2.6. The Role of the Judge Regarding the Value-Based Interpretation of the Law
  • 1.2.7. The Application of the Value-Based Approach in Legal Interpretation and Political Regimes
  • 1.2.8. The Application of the Value-Based Approach in Times of Crisis
  • 1.2.9. Interim findings
  • 1.3. The War Against Freedom of Conscience
  • 1.3.1. Freedom of Conscience and Its Contemporary Relevance
  • 1.3.2. Freedom of Conscience and Its Development
  • 1.3.3. Freedom of Conscience and Its Relation to Freedom of Thought and Freedom of Religion
  • 1.3.4. The Right to Freedom of Conscience and Legal Regulation
  • 1.3.5. Case Law on the Right to Freedom of Conscience
  • 1.3.6. Freedom of Conscience in the Context of Russia’s War of Aggression Against Ukraine
  • 1.3.7. Interim findings
  • 1.4. Perspectives on Ukrainian Constitutional Aspirations Regarding European Identity After the War of Aggression
  • 1.4.1. The 2019 Constitutional Amendments Introducing Ukraine’s European Identity
  • 1.4.2. Constitutional Safeguards and the Despicable Proposition to End the War of aggression
  • 1.4.3. A European Perspective for Ukraine After the War of Aggression: Steps Taken and Future Insights
  • 1.4.4. Interim findings
  • Chapter 2. Challenges for International Law Field in the Context of Armed Conflicts and Emergencies
  • 2.1. Understanding the Function of the Prohibition of the Use Force and Its Impact on Seeking Peace
  • 2.1.1. The System
  • 2.1.2. Old Legal Thought
  • 2.1.3. Courses of Action of the International Community after Russia’s Invasion of Ukraine
  • 2.1.4. New Legal Thought
  • 2.1.5. Interim findings
  • 2.2. Battlefield Ukraine: Russia’s War of Aggression Against Ukraine and Selected Issues of International Humanitarian Law
  • 2.2.1. Context
  • 2.2.2. The Qualification of the Conflict: Nomen est Omen
  • 2.2.3. Crimea and the Hybrid War in the Donbas
  • 2.2.4. Full-Scale Invasion
  • 2.2.5. The Status of Persons Involved in the Conflict
  • 2.2.6. Armed Forces
  • 2.2.7. The International Legion
  • 2.2.8. Territorial Defence Forces (Teroborona) and levée en masse
  • 2.2.9. Rogue Forces
  • 2.2.10. An Assessment of the Status of the Wagner Private Military Company
  • 2.2.11. The Treatment of Prisoners of War
  • 2.2.12. Interim findings
  • 2.3. The Problem of Genocidal Intent: A Historical Perspective for Ukraine
  • 2.3.1. State Responsibility vs Individual Responsibility
  • 2.3.2. The Challenging Concept of Genocidal Intent: The Role of a Motive
  • 2.3.3. A Lithuanian Strategy to Prove Soviet Genocidal Intent
  • 2.3.4. Proving Russian Genocidal Intent in Ukraine
  • 2.3.5. Interim findings
  • 2.4. A Jurisdictional Challenge in the Coastal State Rights Dispute: Sovereignty Issues over Crimea
  • 2.4.1. The Factual Background of the Coastal State Rights Dispute
  • 2.4.2. The Settlement of the Sovereignty Dispute over Crimea Within the UNCLOS Dispute Settlement Procedure
  • 2.4.3. Removing the Judicial Challenge of a Sovereign Dispute Outside of UNCLOS
  • 2.4.4. Interim findings
  • Chapter 3. Challenges for Specific Fields of Law in the Context of Armed Conflicts and Emergencies
  • 3.1. The Right of the Accused to Be Informed as a Condition for the Legality of Criminal Proceedings in absentia in the Context of War Crimes and Crimes Against Humanity
  • 3.1.1. Criminal Trials in absentia: Is This Still Relevant?
  • 3.1.2. The Right of the Accused Person to Be Present at the Trial: The Premise of Fair Criminal Proceedings
  • 3.1.3. Proper Notification of the Accused Person – A Condition for the Legality of Criminal Proceedings in absentia
  • 3.1.4. The Legal Consequences of Failure to Inform the Accused of the Criminal Proceedings Against Them
  • 3.1.5. Interim findings
  • 3.2. Should Ecocide Be an International Crime?
  • 3.2.1. Background
  • 3.2.2. The Concept of Ecocide
  • 3.2.3. The Path Towards International Law Recognising Ecocide as an International Crime
  • 3.2.4. Ecocide as a Crime of the State
  • 3.2.5. Interim findings
  • 3.3. Lay Participation in Ukrainian Court Proceedings During Russia's War of Aggression: Constitutional Aspects
  • 3.3.1. Context
  • 3.3.2. The Model for the Participation of Lay Judges in the Administration of Justice in Ukraine
  • 3.3.3. The Participation of Lay Judges in the Administration of Justice in Ukraine During Russia's War of Aggression
  • 3.3.4. Interim findings
  • 3.4. Organising Elections During Wartime: The Case of Ukraine
  • 3.4.1. The Context of Elections Taking Place in Ukraine
  • 3.4.2. The Implementation of the Principle of Regular Elections
  • 3.4.3. The Impact of Martial Law on Elections
  • 3.4.4. The Influence of the War of Aggression on the Organisation of Elections in Ukraine in 2023–2024
  • 3.4.5. Cases in Which Elections Can Be Held
  • 3.4.6. The Announcement of Elections After the End of Martial Law
  • 3.4.7. The Extension of the Mandate
  • 3.4.8. The Organisation of Elections in Occupied and De-occupied Territories
  • 3.4.9. The Importance of Securing Elections During the Application of Martial Law
  • 3.4.10. Interim findings
  • 3.5. The Administrative Procedure Act in Ukraine: Recent Development, Challenges, and Solutions
  • 3.5.1. The Concept of an Administrative Procedure
  • 3.5.2. The Historical Context of the Law of Ukraine on Administrative Procedure
  • 3.5.3. The Law of Ukraine on Administrative Procedure: Analysis of Key Provisions
  • 3.5.4. Administrative Proceedings Under the Law on Administrative Procedure
  • 3.5.5. The New Administrative Procedure: Possible Challenges and Solutions
  • 3.5.6. Interim findings
  • 3.6. Ensuring and Protecting Human Rights in Healthcare in Times of War: The Ukrainian Experience
  • 3.6.1. The Context
  • 3.6.2. The Right to Life and the Right to Personal Integrity in the Context of Human Rights in Healthcare
  • 3.6.3. Ensuring the Resilience of the Healthcare System as a Prerequisite for Protecting Human Rights in Healthcare
  • 3.6.4. Patients and Healthcare Professionals’ Rights in Times of War: A Few Considerations
  • 3.6.5. Interim findings
  • 3.7. Business and Human Rights in the Recovery Agenda for Ukraine
  • 3.7.1. Social Expectations of Corporate Responsibility and Respect for Human Rights
  • 3.7.2. The Solidarity Approach to Rethinking the Business and Human Rights Framework
  • 3.7.3. Business as a Human Rights Duty Bearer
  • 3.7.4. The Human Rights Obligations of Business: The Vertical Dimension
  • 3.7.5. Requesting the Legitimacy of Corporate Actors
  • 3.7.6. Heightened Human Rights Due Diligence
  • 3.7.7. Interim findings
  • 3.8. The Role of Cyber Defence and the Problems It Faces in the Context of Aggression
  • 3.8.1. The Concept of Cybersecurity in the Conditions of War Within the Geopolitical Processes of Today
  • 3.8.2. Modern Concepts of the ‘fourth branch of government’ and Its Impact on the Global Social and Political Climate, Legal Control and the Regulation of the Virtual World
  • 3.8.3. Interim findings
  • 3.9. Legislative Challenges in Neighbouring Countries as a Consequence of the War of Aggression Against Ukraine: The Example of Poland
  • 3.9.1. General Remarks
  • 3.9.2. The Substantive Scope of New Regulations
  • 3.9.3. Procedural Aspects of Enacted Laws
  • 3.9.4. The Impact of the War of Aggression on Political Interactions in the Legislative Process
  • 3.9.5. The Quality and Stability of the Laws Enacted under the Circumstances of the War of Aggression
  • 3.9.6. Interim findings
  • Conclusions
  • Summary
  • Bibliography
  • List of Tables
  • List of Figures
  • Notes on Contributors
  • Index

Foreword

This impressive new book, The Impact of War and Extraordinary Situations on Law in the Context of Aggression Against Ukraine, represents a significant contribution to the examination and understanding of Russia’s military invasion of Ukraine in 2022, a deeply destructive event in history and legal science. I am honoured to offer this Foreword to it. Having researched, written about, and taught international law extensively, I am confident that readers will find this book engaging as well as instructive regarding the legal and moral dimensions of the ensuing war.

An initial perusal of the many topics examined in this book illustrates the breadth of its coverage, while thoughtful reading reveals its depth. This compilation of scholarly analysis is a must-read for academics and lay observers alike in the fields of international and domestic law, as well as within the sweeping overlay of human rights. Likewise, this book’s list of authors includes specialists whose expertise is well illustrated within its pages.

The varied contributing authors examine Russia’s aggression against Ukraine in the context of armed conflicts and emergencies in three parts: (1) the role of values, identity, and human rights; (2) challenges for international law, including battlefield and genocide issues; and (3) challenges in specific fields of law, such as criminal prosecutions, constitutional requirements, elections in wartime, human rights in healthcare, and cyber defence. This scholarly book traverses the broad legal landscape.

Russia’s notorious military invasion of Ukraine in February 2022 – boldly announced beforehand on television by Russian President Vladimir Putin – shocked the world. The first Russian missiles began exploding in Ukrainian territory minutes after Putin spoke (The Kyiv Independent 2022), while troops and tanks attacked from Russia, Crimea, and Belarus (Netherlands Times 2022). The continent of Europe had not experienced such a broad attack on national sovereignty since World War II. Predictably, news media broadcasted the subsequent events in vivid detail, magnified by the personal video and audio messages sent around the world by legions of Ukrainian eye-witnesses (Aljazeera 2022a; Sangal et al. 2022). The war was on. So were the satellites.

Within seven days, the International Criminal Court (hereafter – the ICC) prosecutor had announced the opening of an official war crimes investigation (Corder 2022). The United Nations (hereafter – the UN), the European Union (hereafter – the EU), the Council of Europe, the Organization for Security and Co-operation in Europe (hereafter – OSCE), the North Atlantic Treaty Organisation (hereafter – NATO), the Group of Seven (hereafter – G7), and numerous Western democracies condemned the invasion, alleging numerous war crimes in violation of international law (BBC 2022; Aljazeera 2022c). Many Western countries simultaneously launched an extensive array of economic sanctions on Russia and set in motion the delivery of military weapons to Ukraine (Diehn 2022). Six days after the invasion, the UN General Assembly (hereafter – UNGA) adopted a Resolution condemning the invasion and calling on Russia to withdraw (UN News 2022). UN Secretary-General António Guterres amplified these calls: ‘The message of the General Assembly is loud and clear: End hostilities in Ukraine now. Silence the guns now. Open the door to dialogue and diplomacy now’ (UN News 2022). He based his statement on the foundational doctrine of the post-World War II international order, the totemic Article 2 of the UN Charter:

Day after day, I have been clear that such unilateral measures conflict directly with the United Nations Charter. The Charter [Article 2] is clear: ‘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.’ The use of force by one country against another is the repudiation of the principles that every country has committed to uphold. This applies to the present military offensive. It is wrong. It is against the Charter. It is unacceptable (United Nations Secretary General 2022).

The UN High Commissioner for Human Rights, Michelle Bachelet, emphasised that ‘the death and destruction … will scar generations to come. … [T]‌he extent and intensity of fighting, as well as the number of civilian deaths strongly suggest that serious violations of international … law have occurred’ (Deutsche Welle 2022a). The EU, geographically sensitive to the war, reacted immediately. On the day of the invasion, the collectively powerful European Council (heads of State or government) issued an unusually explicit condemnation:

The use of force and coercion to change borders has no place in the 21st century. Tensions and conflict should be resolved exclusively through dialogue and diplomacy. The European Council condemns in the strongest possible terms the Russian Federation’s unprovoked and unjustified military aggression against Ukraine. By its illegal military actions, Russia is grossly violating international law and the principles of the UN Charter and undermining European and global security and stability… Russia bears full responsibility for this act of aggression and all the destruction and loss of life it will cause. It will be held accountable for its actions. (Council of the European Union 2022)

Five days later, the Presidents of the European Parliament, the European Commission, and the European Council, as well as the EU’s High Representative for Foreign Affairs and Security Policy, met in an extraordinary plenary session where they were exhorted by live video appeals for support from Ukrainian President Volodymyr Zelensky and the Speaker of the Ukrainian Parliament Ruslan Stefanchuk (European Parliament News 2022b). EU Parliament President Roberta Metsola opened the meeting:

We are here today in the dark shadow cast by Putin’s war… An outrageous invasion of a sovereign, independent state… We will not look away when those fighting in the streets for our values face down Putin’s massive war machine. We will support the International Criminal Court’s jurisdiction and investigation of war crimes in Ukraine. We will hold him accountable. (European Parliament News 2022b)

Broad economic sanctions against Russia followed. Six packages of sanctions against the Russian government as well as companies and individuals responsible for actions that furthered the assault on Ukraine included: the prohibition of certain goods (e.g., technology and energy related) being exported to Russia; a ban on the importation of valuable products from Russia (oil, coal, and steel, for example); the denial of access to EU airports and airspace for Russian planes; the denial of access to EU ports for Russia’s maritime fleet; the denial of most Russian bank transactions through the SWIFT system, and more (Council of the EU [ca. 2022]). The EU also blocked Russian media outlets Sputnik and RT/Russia Today, both within or directed toward the EU, until the end of the war, and until the Russian outlets ‘cease to conduct disinformation and information manipulation against the EU and its member states’ (Council of the EU Press Release 2022).

In a precedent-setting measure, just a week after the invasion the EU invoked the a directive on minimum standards for providing temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (hereafter – the Temporary Protection Directive), permitting fleeing Ukrainians to physically enter the EU, obtain residency rights, access the labour market, and qualify for housing, social welfare assistance, medical or other assistance, and means of subsistence (European Commission 2020b). An estimated six million refugees have since fled Ukraine, exceeding any other refugee crisis in recent years, and the prompt, successful invocation of the Temporary Protection Directive has been hailed by some as a potential tipping point in humanitarian refugee protection (Benton and Selee 2022).

June 2022 saw another politically symbolic and economically significant step: the EU granted Ukraine accelerated EU membership candidate status, ‘a bold geopolitical step hailed by Kyiv and the EU itself as an “historic moment” …a symbol of the EU’s intention to reach deep into the former Soviet Union’ (Siebold and Melander 2022; Petrequin and Corder 2022). Commission President Ursula von der Leyen stated at the conclusion of the decisive European Council summit on June 24, 2022 that this decision ‘strengthens Ukraine, Moldova and Georgia, in the face of Russian imperialism. And it strengthens the EU. Because it shows once again to the world that we are united and strong in the face of external threats’ (Parker et al. 2022).

Notably, Lithuania enforced EU sanctions strictly in another significant political and economic move in June 2022, when it barred Russian railroad access across its territory for the transport of steel, coal, and other materials to the Russian enclave of Kaliningrad, which unsurprisingly provoked the ire of Russian leaders (Euractiv 2022).

War Crimes

This book also examines the hugely important topic of war crimes. Thus, it is crucial for the reader to understand that international law has undergone a radical transformation over the past century with the outlawing of aggressive war as a means of settling disputes. Following World War I, some fifteen nations signed The General Treaty for Renunciation of War as an Instrument of National Policy (League of Nations 1919), often referred to as the Kellogg-Briand Pact, which flatly forbade aggressive war for the first time in history (Brownlie 2003). The League of Nations followed and failed, and World War II – more destructive than the First – subsequently befell the globe (Lee 1991). The adoption of the Charter of the UN (1945, hereafter – the UN Charter) and the formation of the UN in 1945 became the symbol and substance of a renewed desire by nations to construct a stable order for global peace and prosperity (UN 1945, Prologue; Art. 1). Both the Kellogg-Briand Pact and the UN Charter were grounded in the rejection of war as a legitimate means of settling international disputes, obliging signatories to settle disputes exclusively by peaceful means (Dexter 2000). Article 2, Sections (3) and (4) of the UN Charter explicitly require that:

  1. 3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.
  2. 4. 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 [emphasis added]. (UN 1945)

Russia’s 2022 invasion of Ukraine shocked the international order with its brazenness and lack of credible justification. In this rejection of today’s fundamental principles of international law lies the essence of this blow to the global legal order.

Furthermore, today international law establishes a broad web of rules for the conduct of hostilities in general (Detter, 2000 p. 166). The general principles of the IHL have largely become accepted, and were most recently articulated in statute form. The widely heralded Rome Statute (hereafter – the Rome Statute) created the ICC (Bassiouni 1998), and today offers a reasonably clear, contemporary definition of the modern-day offenses recognised by the global community.

Part 2, Articles 5 through 8 bis of the Rome Statute list and define the various war crimes within the jurisdiction of the Court. Article 5 is straightforward, limiting its scope to ‘the most serious crimes of concern to the international community as a whole’, namely: ‘(a) the crime of genocide; (b) crimes against humanity; (c) war crimes; [and] (d) the crime of aggression’ (Rome Statute 1998, p. 3). Then, in Articles 6–8 bis, the Statute defines those crimes which ‘correspond in a general sense to the state of customary international law. The four categories of crimes are drawn from existing definitions and use familiar terminology’ (chabas 2017, pp. 77–78). Due to the length of these statutes, short summaries are offered here.

Article 6 defines genocide as it is commonly understood: killing, seriously injuring, and forcibly transferring populations, with the ‘intent to destroy, in whole or in part, a national, ethnical, racial group, as such’ (Rome Statute, p. 3). Article 7 lists the many core crimes against humanity: murder, extermination, enslavement, imprisonment, torture, crimes of a sexual nature, and similar. Article 8 describes the acts that constitute war crimes as ‘any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention (hereafter – GC)’: killing; torture or inhuman treatment, wilfully causing great suffering, or serious injury to body or health and similar (Rome Statute, p. 4).

The notion of straightforward application fits many of these crimes. Many of the heinous crimes against humanity targeting civilians that are outlined in Article 7 have been described patently and repeatedly in government and agency reports and the media as part of the systematic attacks that have occurred in Russia’s invasion of Ukraine, especially murder, torture, rape, and other inhumane acts of a similar character intentionally causing great suffering or serious injury to physical or mental health.

Likewise, Article 8 invokes the four GCs of 1949 (Best 1994, p. 80) that extended the protection of international humanitarian law to those not taking part in the hostilities (e.g., health workers and civilians) and those no longer participating in hostilities (e.g., prisoners of war and wounded, sick or otherwise incapacitated soldiers) (International Committee on the Red Cross (hereafter – ICRC 2010). For the aforementioned categories of non-combatant victims, the following war crimes would also apply in Russia’s invasion of Ukraine: wilful killing, torture or inhuman treatment; causing serious injury; and the extensive destruction of property not justified by military necessity and carried out unlawfully and wantonly.

Prosecution for these crimes in the ICC, or any court, would be possible and likely to succeed with the evidence being gathered and preserved at present. Captured soldiers and their field leaders would be the most common defendants.

As noted above, Article 5 names the crime of genocide first in its list of the ‘most serious crimes of concern to the international community as a whole’ (Rome Statute 1998, p. 3). The Rome Statute provides the accepted definition of the crime of genocide, copied from Article II of the original 1948 GC (Convention on the Prevention and Punishment of the Crime of Genocide [GC]), and represents a codification of customary international law (Schabas 2017, pp. 88–89).

Article 6 Genocide

For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group (Rome Statute 1998, p. 6).

The actions of the Russian army easily qualify as several of the specific acts prescribed in the aforementioned Article. Undoubtedly, Russian soldiers and weapons have killed and caused serious bodily or mental harm to members of the group of Ukrainians. Moreover, they deliberately inflicted on the group conditions of life calculated to bring about its physical destruction, and the forcible transfer of children has been well-reported. Article 6 of the Rome Statute is clear in requiring only ‘any of the following acts’; thus, any one of the sub-articles of Article 6 would expose Russia to valid accusations of this most heinous crime.

Finally, the Rome Statute’s subsequent Article 8 bis articulates the ‘Crime of Aggression’, the enactment of which was as unexpected as it was revolutionary (Schabas 2017, pp. 131–139). This crime focuses on the most powerful political and military actors.

The Special Crime of Aggression

Multiple scholars, lawyers, and other leaders have also recommended that the prosecution of the specific international crime of aggression, as articulated in Article 8 bis of the Rome Statute, would be especially appropriate and just in the circumstances presented by Russia’s publicly orchestrated invasion of Ukraine in 2022 (Ochab 2022). Some also recommend that this act of aggression as a war crime would be most effectively prosecuted in a special hybrid court created by Ukraine in collaboration with one or more European institutions and supported by willing European States.

Judges at the historic Nuremburg trial poignantly captured the significance of this crime:

War is essentially an evil thing. Its consequences are not confined to the belligerent States alone but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole [emphasis added]. (France et al. v. Göring 1948, p. 433).

One prominent human rights advocate has also aptly urged that, as such a pure form of evil, ‘the crime of aggression cannot be left unpunished’ (Ochab 2022). ‘[T]‌he crime of aggression is the beating heart of this whole issue’, another adds; ‘at the end of the day, if Putin had not gone to war, none of the other crimes would have taken place’ (Roth 2022). A further expert reminds us that preventing ‘the scourge of aggressive war’ is manifestly the central purpose of the UN Charter, as explicitly stated in the Preamble and Article 1 (1) (Trahan 2022).

The highly focused crime of aggression, then termed ‘crimes against the peace’, was first prosecuted in the well-known Nuremberg and Tokyo special tribunals after World War II, specifically dedicated to prosecuting the political and military leaders of Germany and Japan. This crime gradually received international acceptance as customary international law, and in 2010 it was included in the litany of crimes named in the Rome Statute (McDougall 2021, pp. 1–3). As its definition, outlined below, illustrates, it is designed for heads of state and top leaders in decision-making positions, and concerns acts that are actually easier to prosecute than the other categories of war crimes (Inglis 2022).

Key legal actors agree that this level of accountability should be pursued. Ukraine’s President, Zelensky, has urged more than once that ‘existing judicial institutions cannot bring all the guilty parties to justice. Therefore, a special tribunal is needed to address the crime of Russian aggression against Ukraine’ (AFP 2022a). In May 2022, ‘Ukrainian Foreign Minister Dmytro Kuleba officially requested the support from G7 countries and the Council of Europe for the creation of a special tribunal to judge Russia’s ‘aggression’ against Ukraine: ‘This is the first official request from the Ukrainian government’, said Anton Korynevych, Zelensky’s advisor’ (Maupas 2022). Korynevych also named the Hague as a possible site for this special court, hoping for as many other countries as possible to participate in order to strengthen its legitimacy (Majumdar 2022).

The ICC’s defining Rome Statute offers the most contemporary articulation of such military aggression against a sovereign State. Article 8 bis of the Rome Statute was delicately designed to target the political and military architects of such international law and humanitarian disasters, enduring multiple rounds of contentious negotiations before finally being adopted in 2010 (Barriga and Grover 2011). Article 8 bis opens a new chapter and category for the ICC.

The Russian military invasion of Ukraine patently qualifies on every criteria quoted above. Moreover, this extreme and public war begs for the prosecution of its leaders and participants at every level, but especially the top leadership of Russia, who took the pernicious decision to start the killing. The crime fits precisely, and its prosecution should be straightforward. One human rights lawyer also recommends the crime of aggression because it targets those in power who made the decision to attack, rather than those who continue to carry out the order: ‘The very fact that you launched the war illegally against another country is enough. It’s a much easier crime to prove, and it is much more straightforward in terms of who’s responsible because it was announced publicly on television [by Russian President Vladimir Putin]. … It is not a secret who the top generals are who are now executing it’ (Schultz 2022).

This Foreword has sought to orient prospective readers to the valuable offerings that follow. So many issues arising from the war in Ukraine require sophisticated inquiry, and these introductory comments are meant only to aid the reader in that task. In the end, many international and intergovernmental organisations will approach the task of ensuring accountability, and courts and rebuilding programs will follow – from the Ukrainian government to the EU, the Council of Europe, the OSCE, the UN, and numerous national governments. A formal judicial decree branding Putin and his generals as war criminals would echo down the halls of history long after – it is hoped – the Russians are driven out of Ukraine (Lacovara 2022). While convictions against individuals are the ideal outcomes of international criminal law, this timely book reveals the many constructive actions and remedies that will help reconstruct Europe after the war in Ukraine.

Patrick R. Hugg

Professor of Law Emeritus

Loyola University College of Law, USA

Acknowledgements

This collective edited book is the result of the efforts of Mykolas Romeris University Law School, which on several occasions analysed the legal aspects of emergency situations previously (the last being the COVID-19 pandemic). Almost immediately after the invasion of 24 February 2022, Mykolas Romeris University academics reacted to the aggression against Ukraine by gathering Lithuanian experts to urgent online discussions on the emergency situation, and on 9 March 2022 – internationally renowned experts of international law to deliver preliminary assessment of the situation. This expertise has led to a wider initiative to gather academics in their respective fields to answer the questions that many of us raise when emergency occurs.

This book is published in the framework of the 2022–2026 Research Program titled Rule of Law, Sustainability, Technologies approved by MRU in 2021, which identified five target interdisciplinary domains, including, ‘The Transformation of Human Rights’, ‘Democracy and the Rule of Law’, ‘The Relations Between Law, Sustainability and Technologies’, ‘Effective Justice’ and ‘Security Research’. The aim of the domains titled ‘The Transformation of Human Rights’ and the ‘Democracy and the Rule of Law’ is intended to explore the influence of international and regional legal systems on the development of democratic institutions and to address interdisciplinary studies related to the impact of new technologies on law, changes in legal regulation. For this task, over 20 national and international legal scholars contributed to this edited volume.

The editors of this book would like to express gratitude to all authors for their commitment to this initiative, Mykolas Romeris University and Law School administration – for taking care of the publishing and editing procedures, as well as reviewers, proof-readers and other persons involved in this project for their valuable assistance. Particular acknowledgement goes to Ms. Meda Baranauskaitė from the Law School who spent endless hours to proofread the manuscript and organise all the references in a reader friendly manner.

Introduction

Several crises have shocked the world in recent years, reshaping numerous norms that regulate inter-state relations, state and individual relations and even our daily lives in general. Even amongst these events, Russia’s aggression against Ukraine has been acknowledged by politicians and observers as a watershed moment in modern history, a turning point comparable in importance to the attacks on the World Trade Centre, the fall of the Berlin Wall, and even the assassination of John F. Kennedy (The Guardian 2022). Undoubtedly, the violence following the Russian invasion of Ukraine on 24 February 2022 has shaken the established international legal order in somewhat unexpected and unwelcome ways. Ukraine has become the crucible of a new global reality overnight, producing a new geopolitical alphabet that spells out a much-altered future (The Guardian 2022). Has it also produced significant change in the approaches of international law, and will this lead to the transformation of the international legal environment? Will it shape national legal developments, forcing them to be better prepared and more resilient in the face of such extraordinary situations?

Details

Pages
462
Publication Year
2024
ISBN (PDF)
9783631928134
ISBN (ePUB)
9783631928141
ISBN (Hardcover)
9783631923504
DOI
10.3726/b22448
Open Access
CC-BY-NC-ND
Language
English
Publication date
2024 (November)
Keywords
War emergency situations democracy Ukraine Russia
Published
Berlin, Bruxelles, Chennai, Lausanne, New York, Oxford, 2024. 462 pp.
Product Safety
Peter Lang Group AG

Biographical notes

Patrick R. Hugg (Volume editor) Dmytro Luchenko (Volume editor) Lyra Jakulevičienė (Volume editor)

Lyra Jakulevicˇiene is a professor and Dean at Mykolas Romeris University, specializing in international public law, EU law, and human rights for over 25 years. She serves on European human rights bodies and has published extensively. She previously worked with several UN organizations and led multiple research projects. Patrick R. Hugg is Professor of Law Emeritus at Loyola University, where he held the John McAulay Distinguished Professorship. He directed International Programs and founded several study programs focused on European Union law. He has authored numerous law journal articles and frequently speaks at national and international conferences. Dmytro Luchenko is a Vice-Rector for Research at Yaroslav the Wise National Law University of Ukraine, Professor of Administrative Law. He has authored over 150 publications on human rights, administrative law, and democracy. He is the founder of two NGOs focused on promoting the rule of law and supporting higher education.

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Title: The Impact of War and Extraordinary Situations on Law in the Context of Agression against Ukraine