Will the United Nations be able to hold Russia accountable for aggression against Ukraine?

Anita Huang

Russia’s invasion of Ukraine has resulted in a multitude of allegations of human rights violations such as the targeting of civilians and the withholding of humanitarian aid from civilian populations. In the last two months, various mechanisms have been employed by the United Nations (UN) and human rights bodies to attempt to hold Russia accountable.   

In March 2022 the Council of Europe (founded in the wake of World War II to uphold human rights Europe) voted to expel Russia. As a result, Russia will no longer be party to the European Convention on Human Rights (ECHR). The European Court of Human Rights will also no longer accept applications made against Russia alleging violations of the ECHR after 16 September 2022. While recognising that Russia’s actions have violated its obligations under the ECHR, it is devastating for victims of Russia’s aggression as this will restrict the avenues available to them to seek redress.

A similar move has now been followed at the UN. On 8 April 2022, the United Nations General Assembly (UNGA) adopted a Resolution which suspended Russia from the UN Human Rights Council (HRC). The General Assembly Resolution establishing the HRC in 2006 provides that a member which has committed “gross and systematic violations of human rights” can be suspended by a two-thirds majority of the members present and voting in the UNGA. Reports about mass civilian casualties in Mariupol, Bucha and other Ukrainian cities, and the lack of access to humanitarian aid to civilians indicate that Russia has met this threshold.

Russia is only the second country to be suspended from the HRC after Libya was suspended in 2011 in response to Muammar Gaddafi’s violent crackdown on anti-government protestors during the Arab Spring. Even as an observer state to the HRC, Russia may still use proxy states or coercive tactics to influence future HRC resolutions. Further, Russia’s use of its veto power to block a UN Security Council resolution demanding it cease its attack on Ukraine is an indication that accountability is unlikely to be achieved via this mechanism while Russia holds a seat as a permanent UNSC member.

The ongoing international armed conflict between Russia and Ukraine clearly demonstrates how the distinct legal frameworks provided by international human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) complement each other to provide different mechanisms for pursuing accountability against Russia.

While IHL operates exclusively in wartime, IHRL must be respected in all circumstances. For example, specific human rights, such as the prohibition against torture, cannot be derogated¹ from even in an emergency. ICL also provides a mechanism to pursue individual accountability for human rights violations including war crimes.

Under IHL, the Geneva Conventions confer explicit obligations on parties to an armed conflict to avoid attacks against civilians and non-combatants and limit military operations to solely military objects. The International Criminal Court (ICC) has jurisdiction under the Rome Statute to prosecute grave breaches of the Geneva Conventions such as war crimes. While neither Russia nor Ukraine are parties to the Rome Statute, Ukraine has declared acceptance of the ICC’s jurisdiction and an investigation has been opened into the alleged crimes being committed in Ukraine.

The Rome Statute identifies a war crime as including the act of intentionally withholding access to food by civilians as a method of warfare. IHL also prohibits the destruction of objects indispensable to the survival of the civilian population regardless of motive. Residents who have managed to escape Mariupol have described living situations with little to no access to food, running water, electricity, medical care and mobile service since Russian forces surrounded the city in early March. Civilian objects such as schools, hospitals, and residential homes have also been attacked and destroyed. Russia has been accused of withholding humanitarian access to starve the city into surrendering.

The international community continues to pursue multiple UN processes in seeking accountability for Russia’s aggression. While investigations are ongoing, the collection of evidence will take significant time due to the complexities of investigating in an active war zone. The ICC, as a judicial institution, does not have an enforcement mechanism and must rely on the cooperation of States to make arrests and enforce sentences. The Court also does not try individuals in absentia.² These issues, along with the unlikelihood that Russia will cooperate with the ICC and Russia’s permanent membership on the UNSC, are some of the ongoing challenges in seeking both an end to the conflict and accountability for the human rights violations committed.

Anita Huang is in her sixth year of a Bachelor of International Studies/Law and was an intern with the Australian Human Rights Institute in Term 1, 2022.