THE ADVOCATE V O L . 8 0 P A R T 3 M A Y 2 0 2 2 331
On February 25, 2022, the United Nations Security Council failed to adopt
a draft resolution that would have “deplored, in the strongest terms, the
Russian Federation’s aggression” against Ukraine. While 11 of the 15 members
of the Security Council were in favour of the resolution, 3 abstained
and Russia, not surprisingly, exercised its veto power to defeat the resolution
altogether. This defeat caused the Security Council to pass a resolution
to convene an emergency special session of the UN General Assembly,
which on March 2, 2022 voted 141:5 to demand that Russia stop the war and
withdraw all of its military forces. There were 35 abstentions. Those voting
against the resolution and supporting the invasion were Belarus, Eritrea,
North Korea, Syria and, of course, Russia.
The United Nations and its institutions, including the International Court
of Justice (“ICJ”) and the International Criminal Court (“ICC”), are not without
their limitations. For example, Ukraine filed a lawsuit against Russia at
the ICJ alleging violations of the 1948 Convention on the Prevention and Punishment
of the Crime of Genocide, to which both Ukraine and Russia are parties,
on the basis of Russia using a false claim of genocide as a pretext to
justify the invasion. On March 16, 2022, the ICJ ordered Russia as a preliminary
measure “to immediately suspend the military operations that it commenced”.
Of the 15 judges, 13 supported the preliminary order. The Chinese
and Russian judges opposed. The order is binding on Russia, but the ICJ has
no mechanism to enforce it.
39 states have referred the situation in Ukraine to the ICC, and the chief
prosecutor is investigating various allegations of war crimes in Ukraine,
including the crime of aggression, crimes against humanity and genocide.
However, Russia is not a signatory to the Rome Statute, which created the
court, and does not recognize it as having any jurisdiction. As we said, the
UN institutions are not without their limitations.
Meanwhile, our news feeds and televisions have been filled with images
of war as Russian troops advance on various Ukrainian cities as more than
four million refugees flee Ukraine and President Volodymyr Zelensky
reaches out to Ukrainians and governments around the world to beg for support
for his country’s independence and the preservation of its democracy.
Zelensky’s speeches to the UN, the United States, the United Kingdom,
Canada and other Western democracies have seen him (originally, at least)
urging the NATO community to enforce a no-fly zone over Ukraine. This
approach has been largely resisted by NATO owing to the likelihood of it
escalating matters and the fear of nuclear retaliation by Russia. NATO is,
however, building up its forces on the eastern side of its member states.
How this ends is anybody’s guess.