Roundtable Blog: One Year Since Ukraine’s Ratification of the Rome Statute

Roundtable Blog: “One Year Since Ukraine’s Ratification of the Rome Statute” 

Editor’s Note

This blog marks the first anniversary reflection on one of Ukraine’s most consequential legal milestones — the ratification of the Rome Statute.  Presented as part of PILPG’s Ukraine Peace Negotiations Working Group, this roundtable brings together expert perspectives from leading members of the PILPG Peace Fellows network.  Each contributor examines how Ukraine’s formal accession to the International Criminal Court (ICC) has shaped its justice architecture, legal capacity, and international standing during an ongoing war of aggression.

Published under the Lawyering Justice banner, this post continues PILPG’s effort to connect legal analysis with peace strategy and to situate Ukraine’s accountability progress within a broader framework of international law and diplomacy.  The reflections below assess how ICC membership is reshaping Ukraine’s domestic legal order, transforming cooperation with international institutions, and influencing global debates about aggression, sovereignty, and justice during active conflict.

This roundtable also contributes to a forward-looking policy conversation: how Ukraine and its partners can consolidate an enduring system of accountability that integrates the ICC, the newly established Special Tribunal for the Crime of Aggression, and national war crimes mechanisms.  Together, these insights reaffirm that accountability is not a post-war ideal but a central element of Ukraine’s pursuit of a just and sustainable peace.

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On 25 October 2024, Ukraine deposited its instrument of ratification of the Rome Statute, and on 1 January 2025, the Statute officially entered into force for Ukraine.  This moment marked more than the conclusion of a decades-long legal journey — it represented Ukraine’s determination to enshrine accountability within its national identity even as it continues to defend itself against Russia’s war of aggression.  The decision to join the International Criminal Court (ICC) amid active conflict underscored a powerful principle: that justice is not a luxury of peace, but a condition for achieving it.

In this roundtable blog, PILPG’s Peace Fellows and experts reflect on Ukraine’s first year as a State Party to the ICC through five guiding questions — exploring the most significant impacts of ratification, its influence on Ukraine’s domestic justice system, the evolving cooperation with the ICC, the broader implications for global accountability, and the strategic priorities that lie ahead.

What has been the most significant impact of Ukraine’s ratification of the Rome Statute so far?

Dr. Paul R. Williams, Rebecca Grazier Professor of Law and International Relations at American University

Ukraine’s ratification of the Rome Statute has fundamentally anchored its accountability framework within the international rule of law.  By formally joining the ICC system, Ukraine transformed years of ad hoc cooperation into a durable legal commitment that reinforces its credibility as a state dedicated to justice for atrocity crimes.  This ratification has also elevated Ukraine’s standing among nations seeking to strengthen the global architecture for accountability.  The move has reassured victims and civil society actors that accountability for war crimes, crimes against humanity, and genocide will remain a long-term national and international priority, not a temporary response to Russia’s invasion.

Equally important, the ratification has created a powerful signaling effect.  It distinguishes Ukraine not only as a state under attack but also as a norm entrepreneur advancing international criminal justice from within a war zone. Ukraine’s commitment to the ICC during active conflict underscores that accountability and sovereignty can coexist — and indeed, reinforce one another.  This has encouraged renewed debate within other conflict-affected states about the political value of ICC membership, potentially reshaping global expectations of how wartime democracies engage with international law.

Michael Kelly, Professor at Creighton University School of Law and The Senator Allen A. Sekt Endowed Chair in Law

The most significant impact so far of Ukraine’s ratification of the Rome Statute is not a particular prosecution; rather it is the larger legitimizing function that draws Ukraine more inextricably into the circle of rule of law nations such as those in the European Union.  Fully authoritarian nations such as Russia, China, and Iran stand in stark contrast internationally to democratic rule of nations and Ukraine has shown in its lot with the latter.  As the United States shifts more steadily away from the latter to the former, it is unclear how the balance will shift’.  Nevertheless, Ukraine is on the right side of history embracing democracy and the rule of law.

David Crane, Founding Chief Prosecutor of the UN Special Court for Sierra Leone and Distinguished Scholar in Residence at Syracuse University College of Law

A year ago, Ukraine's signing of the Rome Statute was a pivotal moment for the country, especially given the ongoing conflict with Russia.  By stepping up to this international treaty, Ukraine is taking a clear and firm stand against war crimes and human rights abuses.  This commitment not only strengthens its own legal framework for prosecuting those responsible for atrocities but also enhances its credibility in the eyes of the world.  As Ukraine’s President Volodymyr Zelenskyy stated, "Our future is in a strong Europe and the world, where human rights and justice prevail."  With the backing of the International Criminal Court (ICC), Ukraine can initiate investigations and hold individuals accountable for their actions, even when domestic resources or political will may fall short.  This creates a greater capacity for justice and offers much-needed hope to victims who have suffered during the conflict.

On a broader scale, signing the Rome Statute sends an important message to the international community about Ukraine’s dedication to justice and the rule of law.  It highlights that, amid war and turmoil, Ukraine is serious about adhering to international norms and values, which can help attract more support from allies who prioritize accountability.  This move not only counters the narrative of impunity often seen in conflict zones but also encourages other nations to take a stand against violations.  As noted by the ICC's Chief Prosecutor, Karim Khan, “Every crime against humanity affects all of us,” emphasizing the collective responsibility to seek justice.  Additionally, by aligning itself with the Rome Statute, Ukraine fosters a sense of stability both regionally and globally as it works to prevent future atrocities and build a resilient democratic identity in a challenging environment.

Chris Goebel, Senior Legal Advisor at PILPG

Further to Paul William’s comments, Ukraine's ratification establishes a new precedent for conflict-affected states seeking ICC membership during active hostilities, potentially fundamentally reshaping international practice around timing and conditions for Rome Statute accession.  Historically, states have typically joined the ICC during peacetime or post-conflict transitions when domestic political consensus is usually more achievable and institutional capacity can be methodically developed.  Ukraine's decision to ratify while simultaneously prosecuting over 90 domestic war crimes trials, defending against existential military threats, and managing over 200,000 documented potential international crimes changes this traditional sequence.  Ukraine’s “ratification under fire” model demonstrates that ICC membership and active conflict are not necessarily mutually exclusive, potentially influencing other conflict-affected countries currently outside the Rome Statute system to consider earlier engagement.

How has ICC membership influenced Ukraine’s domestic justice system and approach to atrocity accountability?

Dr. Paul R. Williams, Rebecca Grazier Professor of Law and International Relations at American University

Ukraine’s ICC membership has accelerated domestic reforms designed to align national law with international criminal standards.  In the past year, Ukraine’s parliament has begun harmonizing its criminal code with the definitions of atrocity crimes under the Rome Statute, while judicial and prosecutorial institutions have received enhanced international support to strengthen their investigative capacity.  The Office of the Prosecutor General, working with international partners, has institutionalized mechanisms for evidence preservation and case coordination with the ICC.  These steps are not only procedural but transformational, building the foundations of a hybrid accountability system that combines international legitimacy with local ownership.

At the same time, ICC membership has reshaped the strategic mindset of Ukraine’s justice sector.  Prosecutors and policymakers increasingly frame their efforts through a “complementarity lens” — seeking to demonstrate that Ukraine can credibly investigate and prosecute Rome Statute crimes itself, while relying on the ICC for cases beyond its reach.  This has prompted a broader societal conversation about due process, command responsibility, and victim-centered justice.  In essence, Ukraine’s engagement with the ICC is catalyzing a deeper maturation of its domestic rule-of-law institutions, embedding accountability as a core pillar of post-war reconstruction and peacebuilding.

Michael Scharf, Co-Founder of the Public International Law & Policy Group (PILPG), former Co-Dean of the Case Western Reserve University School of Law and the Joseph C. Hostetler—BakerHostetler Professor of Law

In October 2024, Ukraine amended its criminal code to bring it in line with the ICC, including adding a new provision on command responsibility (similar to Article 28 of the ICC Statute) which had not previously existed as a mode of liability in Ukrainian law.  The concept of command responsibility holds that a superior is responsible for the war crimes committed by subordinates that the superior knew or should have known were being committed and failed to take all necessary and reasonable measures: (1) to prevent the commission of the crimes; (2) to repress the commission of the crimes; or (3) to submit the matter to the competent authorities for investigation and prosecution.  Under this type of liability, Ukraine can prosecute military commanders for war crimes committed in their geographic area of command.  This will provide Ukraine an important tool in the effective prosecution of Russian war crimes at the command level. 

Michael Kelly, Professor at Creighton University School of Law and The Senator Allen A. Sekt Endowed Chair in Law

Ukraine’s constitution federalizes treaty law; consequently, the Rome Statute and the law associated with it come into Ukrainian domestic law.  This will prove helpful as Ukraine seeks to prosecute Russian commanders for war crimes, crimes against humanity, and genocide in Ukrainian criminal courts.  It may prove especially helpful as the OTP more fully incorporates environmental crimes as a species of war crime into its operations in The Hague.  The government in Kyiv wants to prosecute environmental crimes committed by Russia as such.

What opportunities and challenges have emerged in cooperation between Ukraine and the ICC?

Dr. Beth Van Schaack, Senior and Peace Fellow and former Ambassador-at-large for Global Criminal Justice (2022 -2025)

As noted by others on these pages, Ukraine’s ratification of the Rome Statute signals its commitment to pursue justice and accountability for the war crimes, crimes against humanity, and other atrocities being committed daily during Russia’s brutal war of aggression.  Ratification further cements Ukraine’s European orientation, particularly given that joining the ICC would be a prerequisite for EU accession.  This development also signals a new form of complementarity, a concept that is central to the Rome Statute system.  The principle of complementarity dictates that so long as a national court with jurisdiction is appropriately pursuing investigations and prosecutions, ICC actors should stay their hands.  It is only when the national court is unwilling or unable to proceed that the ICC should step in. In this regard, the ICC is often called “a court of last resort.”

In the Ukraine context, of course, we have an ICC state party that is eager to pursue justice and, in fact, adjudicating war crimes cases in its national courts in the midst of a hot conflict to a degree unprecedented in human history.  There’s no question that Ukrainian courts will continue to be the prime engines of accountability going forward.  However, the Office of the Prosecutor General (OPG) has recorded upwards of 200,000 potentially prosecutable crimes since Russia’s full-scale invasion — an impossible juridical task for even the most well-resourced and experienced prosecutorial corps.  With the ICC Prosecutor pursuing Russia’s top leadership, including its head of state, Ukraine can focus on direct perpetrators and those down the chain of command.  Indeed, the ICC Prosecutor has made clear that his applications for arrest warrants benefited greatly from information sharing and other forms of support from the OPG.  As such, we see a new form of “complementarity as cooperation” emerging, whereby the national courts and the ICC undertake a division of labor to manage an enormous crime base.

Michael Scharf, Co-Founder of the Public International Law & Policy Group (PILPG), former Co-Dean of the Case Western Reserve University School of Law and the Joseph C. Hostetler—BakerHostetler Professor of Law

Ukraine’s domestic courts are becoming a laboratory for the refinement of environmental war crimes prosecutions, with the ICC and the rest of the world watching closely.  Because Ukraine’s domestic law, like many European countries, provides for trials in absentia, Ukraine is likely to end up prosecuting cases relating to Russia’s environmental war crimes before the ICC has a chance to do so.  

In addition, Ukraine’s Criminal Code recognizes the crime of “ecocide,” which may serve as a model for future amendment of the ICC Statute.  Article 441 of the Ukraine’s Criminal Code defines ecocide as “mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster,” and provides that it “shall be punishable by imprisonment for a term of eight to fifteen years.”  In September 2024, Vanuatu, along with Fiji and Samoa, submitted a proposal to the ICC to recognize ecocide as a separate crime on par with genocide and other serious offenses.

Michael Kelly, Professor at Creighton University School of Law and The Senator Allen A. Sekt Endowed Chair in Law

There are now greater opportunities for Ukrainian attorneys to serve as prosecutors, defenders, staff, and even judges of the ICC.  Doing so will ensure the benefit of criminal legal practice in Ukraine itself as these individuals over time come home and bring with them their expertise learned in The Hague.

Ambassador (Ret.) Zorica Maric Djordjevic, PILPG Senior Peace Fellow, former Head of the Permanent Mission of Montenegro to the World Trade Organization

Assess opportunities and challenges in cooperation with the ICC and other accountability mechanisms: for Ukraine, signing the Rome Statute opens a crucial legal and moral frontier — institutionalizing accountability amid an ongoing conflict.  The ICC’s involvement in investigating war crimes and crimes against humanity in Ukraine builds on precedents from the former Yugoslavia — the International Criminal Tribunal for the former Yugoslavia (ICTY), and later its national courts under the UN guidance, where international mechanisms shaped historical record, but struggled to ensure reconciliation or local ownership.  Consequently, the Rome Statute for the states of former Yugoslavia served more as a political and normative anchor than a direct vehicle of justice as  the key regional accountability processes were already managed by the ICTY.  The opportunity for Ukraine lies in coupling ICC mechanisms with domestic legal reform, hybrid courts, and truth-seeking processes that embed justice into state reconstruction, rather than outsourcing it entirely to international bodies.

The Balkan experience underscores both the promise and the limitation of Rome Statute membership.  It provides international legitimacy and deterrence, yet its effectiveness depends on political will, judicial capacity, and societal readiness to confront the past.  For Ukraine, learning from post-Yugoslav states means building a system that not only prosecutes crimes, but also transforms justice into a foundation for durable peace, institutional integrity, and reconciliation with the consequences of the war.

How has this step shaped international legal and political discourse on aggression and accountability?

Milena Sterio, Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law

Ukraine’s ratification of the ICC Rome Statute has altered the international legal and political discourse on aggression and accountability.  Although the ICC already had jurisdiction over the situation in Ukraine in light of dozens of state referrals and the prosecutor’s willingness to open first a preliminary examination and then an investigation, Ukraine’s ratification of the Rome Statute signals the country’s willingness to support the world’s only permanent international criminal court in its pursuit of legal accountability.  Although the ICC still lacks jurisdiction over the crime of aggression in Ukraine, the fact that Ukraine, the victim state, has ratified the Rome Statute moves the “goal post” closer, as for the purposes of jurisdiction both the victim and the aggressor state need to be ICC member states; now, in light of Ukraine’s ratification, only the aggressor state (Russia) need become a member (a feat that seems impossible under the current Russian leadership, but that could one day become a reality under a different regime).  

In addition, Ukraine’s ratification of the Rome Statute is significant politically, as it places Ukraine within the “club” of member states, which are generally committed to justice and accountability.  Thus, by ratifying the Rome Statute, Ukraine has positioned itself well geo-politically and strategically, and has opened the door toward cooperation with other member states.  Finally, Ukraine’s ratification of the Rome Statute will bring in line its domestic criminal legislation with current norms and standards of international criminal law, which is a positive development and which once more signals Ukraine’s willingness to support international justice and accountability.

Chris Goebel, Senior Legal Advisor at PILPG

Ukraine’s ratification of the ICC Rome Statute coincided with the formal establishment of the Special Tribunal for the Crime of Aggression against Ukraine through an agreement signed in June 2025 between the Council of Europe and Ukraine.  This institutional innovation represents a watershed development in international criminal law: it is the first international criminal tribunal for aggression created outside the UN Security Council framework — thereby circumventing the veto power that has paralyzed UN-based accountability mechanisms.  The Special Tribunal’s jurisdiction complements ICC investigations by focusing solely on aggression while the ICC pursues war crimes, crimes against humanity, and genocide.  This architectural arrangement — combining the Special Tribunal with Ukraine’s Rome Statute ratification as well as domestic prosecutions — is potentially an important step towards establishing a comprehensive accountability ecosystem in which distinct institutions target different levels of responsibility and categories of atrocity crimes committed in the war.

Looking ahead, what should be the strategic priorities for Ukraine and its partners in consolidating justice mechanisms?

Milena Sterio, Charles R. Emrick Jr. - Calfee Halter & Griswold Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law

Ukraine’s strategic priorities should be to align its domestic criminal law so that there are no gaps or conflicts with respect to the Rome Statute.  Once Ukraine has done so, it will be able to fully implement the Rome Statute, and to assume all the relevant duties and responsibilities of a member state.  

Michael Kelly, Professor at Creighton University School of Law and The Senator Allen A. Sekt Endowed Chair in Law

One thing the ICC will not be able to embrace is prosecution of Russian corporations for complicity in war crimes committed in Ukraine as the Rome Statute currently only extends the court’s jurisdiction over natural persons - not legal persons.  Consequently, Ukraine should prioritize prosecuting Russian corporations for involvement in the war and then request seizure of frozen corporate assets abroad in satisfaction of those judgments.  PILPG has white papers on how to accomplish this task.

Chris Goebel, Senior Legal Advisor at PILPG

Ukraine's ratification of the Rome Statute has made Ukraine’s continued capacity-building for war crimes prosecution an important strategic priority.  For instance, in addition to aligning its laws with developing ICC standards, Ukraine ought to continue to pioneer integration of environmental harm monitoring into both its prosecutorial and its broader national security framework.  With ICC accession, Ukraine has both the opportunity and the obligation to continue to develop sophisticated national expertise in international criminal law, compatible legal procedures, and effective cross-border cooperation — since the ICC expects domestic prosecutions wherever possible. 

Dr. Gregory P. Noone, Ph.D., J.D., is the Executive Director, a Senior Peace Fellow, and Senior Legal Advisor for the Public International Law and Policy Group (PILPG)

Three strategic priorities come to mind. First, now that in June 2025 Ukraine and the Council of Europe have agreed to establish a Special Tribunal for the Crime of Aggression, the immediate focus should be on finalizing the staffing, securing funding, and negotiating cooperation agreements.  This will close the “aggression gap” at the leadership level and complement the ICC’s jurisdiction, ensuring a coherent international justice architecture.  Second, synchronize strategic communications around each major legal milestone (new ICC warrants, tribunal updates, or reparations actions) with targeted sanctions and travel notices, so that accountability carries visible and political consequences.  This linkage reinforces deterrence, sustains allied commitment, and demonstrates that justice has tangible costs for perpetrators.  Third, prioritize cases against field-grade military officers (Majors, Lieutenant Colonels, and Colonels) who exercise direct control over daily operations and the conduct of troops.  These officers serve as the critical link between command intent and battlefield behavior, and are the most likely to travel internationally in the coming years, increasing the practical reach and enforceability of arrest warrants.

Concluding Observations

Ukraine’s first year as a State Party to the Rome Statute has redefined its role in the global justice landscape.  The ratification has anchored accountability within Ukraine’s legal and diplomatic identity, transforming ad hoc cooperation with the ICC into a durable institutional partnership.  This legal step, taken amid ongoing conflict, has demonstrated that the pursuit of justice need not wait for peace; indeed, it can strengthen both the moral and strategic foundations of peace itself.

Across the contributions gathered here, several themes emerge.  Domestically, Ukraine’s ICC membership has catalyzed long-overdue legal reforms, from the incorporation of command responsibility to the development of hybrid accountability mechanisms.  Internationally, it has elevated Ukraine’s credibility as a norm-setting state, willing to uphold international criminal law even under fire.  The first year of implementation has also revealed both the opportunities and the strains of “complementarity as cooperation,” as Ukraine’s national courts and the ICC together navigate an unprecedented caseload of war crimes.

At the same time, the ratification has reverberated far beyond Ukraine.  It has reinvigorated the global conversation on the crime of aggression, coinciding with the June 2025 establishment of the Special Tribunal for the Crime of Aggression against Ukraine.  Together, these institutions signal a renewed commitment to closing the impunity gap for leaders who wage unlawful wars.

As this first anniversary passes, Ukraine stands as both a test case and a torchbearer for the future of international criminal justice.  Its experience shows that even amid destruction, the deliberate construction of legal institutions can serve as an act of resistance — and a foundation for peace built on law, not force.

“Recognizing 2014: The Legal and Moral Imperative for Full Reparations for Russian Aggression”

“Recognizing 2014: The Legal and Moral Imperative for Full Reparations for Russian Aggression”

By: Kateryna Kyrychenko, Dr. Paul R. Williams, and Sindija Beta

Why are the earliest victims of Russia’s war in Ukraine — those targeted since 2014 — still excluded from reparations, when it was exactly the failure to respond to that initial aggression that directly enabled the full-scale invasion in 2022?

In February 2014, the Russian Federation launched its aggression against Ukraine through the illegal occupation and annexation of Crimea, followed shortly by direct military involvement in the Donetsk and Luhansk oblasts. This marked the beginning of a protracted and unlawful use of force that escalated dramatically in 2022 as a full-scale invasion. Today, however, Ukraine’s flagship reparations mechanism — the Register of Damage for Ukraine — recognizes only the latter phase.

While the Register represents a groundbreaking achievement in war-related reparations, its current framework excludes thousands of victims of Russia’s initial aggression. As it stands, the Register only accepts claims for losses incurred from February 24, 2022, onward. This gap in coverage creates a dangerous precedent: it implies that the initial eight years of aggression, occupation, and systematic rights violations somehow fall outside the scope of justice.

The main explanation for this cutoff, as Executive Director of the Register of Damage for Ukraine, Markiyan Kliuchkovskyi has noted, is that the 2022 invasion marked the point at which the global community coalesced in recognizing Russia’s conduct as a full act of aggression. This view reflects the political reality of 2022 — when support for Ukraine surged and international mechanisms mobilized. But from a legal standpoint, Russia’s aggression, along with related damages and human rights violations, began in 2014.

In fact, both international legal institutions and political bodies have consistently recognized that Russia’s aggression began in 2014 — not in 2022. Failing to incorporate that reality into the reparations process risks distorting both legal precedent and the lived experience of victims. This omission is not merely a technical oversight. It risks undermining both the credibility of the reparations process and the legal coherence of Ukraine’s broader accountability architecture.

Beyond its legal and moral implications, this exclusion also carries serious consequences for international security. The failure to hold Russia accountable in 2014 sent a clear signal: limited territorial conquest and hybrid warfare could go unpunished. The result was predictable — a full-scale invasion eight years later. Impunity breeds escalation.

What Constitutes the Crime of Aggression?

The crime of aggression, as set out in the Rome Statute, covers grave violations such as invasion, military occupation, and annexation by the use of force. For an act to qualify, it must constitute a “manifest violation of the Charter of the United Nations,” particularly a violation of the prohibition set out in Article 2(4) against the use of force against the territorial integrity or political independence of another state. Russia’s actions in Ukraine since 2014 meet this standard. To understand why, it is necessary to analyze the four key elements of the crime of aggression as defined in Article 8 bis of the Rome Statute and elaborated in the Elements of Crimes adopted by the Assembly of States Parties.

First, the crime of aggression requires an act of aggression — defined as the use of armed force by one state against the sovereignty, territorial integrity, or political independence of another. In February 2014, forces without insignia (“little green men”), now known to have been deployed by Russia, entered Crimea, took control of key infrastructure and government buildings, blockaded Ukrainian military bases, and facilitated a staged referendum under the presence of occupying troops. These acts were conducted without Ukraine’s consent and in direct violation of its sovereignty. Shortly thereafter, Russia provided military, logistical, and financial support to armed separatist groups in Donetsk and Luhansk and later deployed its own regular troops, leading to open armed hostilities. These actions constitute instances of unlawful use of force by one state against another.

Second, the leadership element requires that the act of aggression be committed by a person in a position effectively to exercise control over or direct the political or military action of a state. This element was also met in 2014. The occupation of Crimea and involvement in Donbas were not spontaneous or decentralized operations; they were executed with the full knowledge, authorization, and strategic direction of the highest echelons of the Russian state. President Vladimir Putin publicly admitted Russian involvement in Crimea shortly after the purported annexation. Russian government documents, parliamentary approvals, military command structures, and the coordinated role of Russian state security services all point to centrally planned and authorized aggression. The operation was not rogue or peripheral — it was a deliberate act of the Russian state.

Third, for the crime of aggression to be prosecutable under the Rome Statute, the act must constitute a manifest violation of the United Nations Charter, considering its character, gravity, and scale. Russia’s annexation of Crimea was not a minor border skirmish or isolated incursion; it was the first forcible seizure of territory on the European continent since World War II. Russia’s actions involved the occupation and absorption of nearly 27,000 square kilometers of Ukrainian territory, a referendum held under military duress, and subsequent violations of the rights of the Crimean population. In Donbas, the use of proxy warfare, heavy weaponry, and regular Russian troops escalated the conflict and caused thousands of civilian and military deaths. The sheer scope and consequences of these acts render them grave breaches of international peace — and manifestly illegal.

Fourth, the use of force must be attributable to one state against another — demonstrating the state-to-state character of the aggression. This requirement is likewise fulfilled. Ukraine is a sovereign, internationally recognized state. The actions of the Russian military and security services, as well as the command and support provided to proxy forces in Donetsk and Luhansk, are attributable to the Russian Federation under international law. Both the “effective control” test (used by the International Court of Justice) and the “overall control” test (used by the ICTY) are satisfied by the documented coordination, equipping, financing, and strategic command provided by Russia. In fact, the European Court of Human Rights and the International Court of Justice have both confirmed Russia’s effective control over Crimea and parts of eastern Ukraine from 2014 onward.

Legal Continuity from 2014 Onward

Since 2014, international institutions have consistently recognized that a legal conflict between Russia and Ukraine began well before the 2022 full-scale invasion. In March 2014, the UN General Assembly adopted Resolution 68/262, affirming Ukraine’s territorial integrity and calling the Russian referendum in Crimea invalid. While this resolution did not use the term “aggression,” it rejected Russia’s annexation claim and urged all states not to recognize any alteration of Crimea’s status. Later resolutions, including 71/205 (2016), 72/190 (2018), and 73/263 (2019), continued to describe Russian control over Crimea as an “occupation,” condemn ongoing violations of international law, and reiterate Ukraine’s sovereignty over Crimea.

In parallel, international legal bodies confirmed the nature of the situation as one involving direct confrontation between states. The Office of the Prosecutor of the International Criminal Court assessed that an international armed conflict began “no later than 26 February 2014”, based on the deployment of Russian forces in Crimea. As noted above, the European Court of Human Rights and the International Court of Justice have also found that Russia has effective control over Ukraine’s eastern regions. Under international humanitarian law, such control — particularly in the absence of Ukraine’s consent — constitutes occupation. That status is not just descriptive; it has legal consequences and, when lacking lawful justification, may constitute an unlawful use of force. The European Parliament has regularly cited 2014 as the start of the war in its resolutions and reports.

Although the term “aggression” may not always appear in these rulings or resolutions, their legal substance aligns with the criteria for the crime of aggression under Article 8 bis of the Rome Statute as discussed above. The facts recognized — including Russia’s unprovoked military intervention, unlawful occupation, and attempted annexation — correspond to acts such as invasion and occupation, which are expressly listed in the Rome Statute as forms of aggression when committed without lawful justification. These findings, therefore, are not mere symbolic gestures. Taken together, they reflect a consistent legal view that Russia’s occupation and, by extension, aggression began in 2014 — not in 2022.

Ukraine’s domestic legal framework reinforces this conclusion. The official date marking the start of Russian aggression — 20 February 2014 — is embedded in parliamentary resolutions, criminal provisions, and Constitutional Court jurisprudence.  Ukrainian statutes refer not merely to conflict or occupation, but to armed aggression and war crimes starting in 2014. In both international and national law, the legal and factual record points to a coherent position: Russia’s war against Ukraine began in 2014 and has involved continuous unlawful uses of force ever since, escalating in 2022.

Structural Injustice and Strategic Risk

By excluding claims from 2014 to 2022, the current reparations mechanism effectively denies redress to victims of occupation, torture, unlawful detention, property seizure, and forced displacement that occurred during those foundational years of the aggression. These victims — many of them from Crimea and eastern Ukraine — remain unacknowledged in one of the key mechanisms meant to deliver justice.

The implications extend beyond Ukraine. International accountability frameworks risk signaling to authoritarian regimes that so-called “slow aggression” — conducted incrementally or by proxy — will be tolerated or erased from legal memory. This undermines global deterrence and weakens the moral authority of international law.

Moreover, the current design inadvertently affirms a narrative that contradicts both law and reality on the ground — namely, that Russia’s war of aggression against Ukraine only became criminal in 2022. This not only denies justice to earlier victims, but also fails to recognize that the aggression of 2022 was enabled — and emboldened — by the impunity of 2014. Correcting this is not simply about retroactive justice; it is about protecting future norms and ensuring that aggression is recognized when it starts, not when it becomes geopolitically inconvenient to ignore.

Toward a More Inclusive Register

Fortunately, legal and institutional solutions are within reach. The statute establishing the Register of Damage can be amended to extend eligibility to claims dating back to 2014. The newly established special tribunal for the crime of aggression against Ukraine does not set 2022 as the beginning of Russia’s aggression, rather it allows the judges to make a legal assessment on a case-by-case basis, which ensures that no arbitrary limitations are placed on justice and reinforces the continuity of legal responsibility.

The Register of Damages could adopt a similar approach and permit an assessment on a case-by-case basis rather than impose an outright limitation.

Conclusion: Building a Just Foundation for Peace

Recognizing 2014 as the starting point for reparations is not only legally sound — it is essential to honoring the dignity of all victims and reinforcing the international legal order. For Ukraine, it also ensures that the peace built in the future will rest on a foundation of integrity, not omission. 

And for the broader international community, it sends a critical message: impunity for early acts of aggression invites escalation. A reparations mechanism that begins in 2022 cannot deter future wars if it overlooks the unpunished aggression that made full-scale invasion possible. Justice delayed is dangerous — but justice denied can be catastrophic.

The Legality of Russia’s Use of Naval Mines in the Black Sea

The Legality of Russia’s Use of Naval Mines in the Black Sea

Read the Original on the Center for Civil Liberties Website

Authors: Dr. Gregory P. Noone and Sindija Beta, PILPG, and Danek Freeman, Joon Cho, Joseph Hahn, and Leigh Dannhauser, Weil, Gotshal & Manges LLP

Naval mines have been a part of warfare for over a century, but their use is strictly regulated under international law to prevent harm to civilians and neutral ships.  While not illegal per se (meaning that their existence is not illegal), naval mines can be dangerous, and rules are in place to control when and how they’re used.  Recently, the spotlight has turned to Russia’s use of these weapons in the Black Sea during its war in Ukraine, raising serious questions about possible further Russian violations of international law.

The Hague Convention and Naval Mines

One of the key treaties that regulates the use of naval mines is the VIII Hague Convention of 1907.  This treaty was established after the devastating loss of civilian lives from unchecked naval mining during the Russo-Japanese War (1904-1905).  The goal was to prevent similar tragedies by laying down clear rules about where and how naval mines can be used, especially to protect neutral ships.

According to the treaty, countries cannot scatter mines that may indiscriminately injure civilians and neutral vessels. For example, floating mines must deactivate within an hour if they’re no longer under control, and anchored mines must become harmless if they break free (Article 1).  Moreover, states are prohibited from laying mines with the sole purpose of targeting commercial ships (Article 2).  Any mines placed must be done with the safety of peaceful shipping in mind, and combatants need to inform others about the presence of mines in dangerous areas.

Even though not all countries signed this treaty, including Russia and Ukraine, many of its key points have become part of customary international law, meaning they apply to all nations, including Russia and Ukraine.  This is where the issue of Russia’s actions comes into focus.

Customary International Law: Additional Protections

In addition to the Hague Convention, the use of naval mines is further restricted by legal principles that are part of customary international law.  These include the principle of distinction and the right of innocent passage.

The principle of distinction, which is outlined in the 1949 Geneva Conventions and their Additional Protocols (Articles 48, 51(2), and 52(2) of Additional Protocol I), prohibits attacks that are directed at civilians or non-combatants.  It requires that combatants must always differentiate between military and civilian targets. Indiscriminate attacks that fail to make this distinction are unlawful.  This principle, recognized as customary international law, is one of the most fundamental rules in warfare.  The International Court of Justice has highlighted that the principle of distinction is one of the “intransgressible principles” of international law (para. 79), and it has been integrated into military operational doctrine worldwide.  Unfortunately, however, the UK government has observed that Russia has consistently violated this legal principle as they have “systematically targeted Ukrainian port and civilian infrastructure,” throughout its war.

The right of innocent passage, codified in Article 17 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS III), protects civilian ships passing through territorial waters, provided they do so in a way that does not threaten the peace or security of the coastal state.  Russia ratified UNCLOS in 1997, meaning that it is bound by this principle.  When naval mines disrupt the safe passage of these civilian vessels, it violates this right.

Both of these principles—distinction and innocent passage—have been cited in key legal judgments, such as in the U.S. v. Nicaragua (1984) case, and apply universally, further highlighting the legal obligations that Russia is infringing upon in its current mining practices.

Naval Mines in the Russia-Ukraine War

While the true extent of mining operations remains unknown, media and other reports indicate that Russia has deployed hundreds of naval mines in the Black Sea since its invasion of Ukraine in 2022.  This includes floating mines, sea bottom mines, and anchored contact mines.  Some mines floating in the Black Sea are anchored contact mines that have become unmoored in stormy weather.  Reports note that mines have been dropped “in the direction of navigation corridors of civil shipping,” including in a “humanitarian corridor” established by Ukraine in the western Black Sea safeguarding the export of grain to Europe and Africa.   Shipping vessels have been hit by these mines near Ukraine’s ports and some mines are reportedly floating near Turkey, Bulgaria, and Romania.  

The UK Foreign Office indicated that Russia has “almost certainly” laid these mines as a covert attempt to lay blame on Ukraine for attacks against civilian vessels, rather than openly sink civilian ships.  These mines have threatened significant disruptions in commercial shipping in the region, including with respect to the export of Ukrainian grain, and tourists bound for Black Sea resorts have been deterred by such reports of drifting rogue mines.  Around the same time, Russia also notably backed out of the Black Sea Grain Initiative, a deal brokered between Russia and Ukraine by the United Nations and Turkey meant to facilitate the safe navigation and export of Ukrainian grain and other foodstuffs via the Black Sea.

Legal Violations: Where Russia Crosses the Line

Russia’s use of naval mines in the Black Sea raises significant questions about compliance with international law.  First, the types of mines being used are concerning.  Under the VIII Hague Convention, floating mines are supposed to deactivate shortly after being deployed, and anchored mines should become harmless if they break free.  However, reports suggest that Russian mines are drifting long distances and remaining dangerous well after deployment, potentially posing risks to neutral and civilian vessels.

In addition to the concerns about the types of mines used, a more pressing issue is the mining of the humanitarian corridor, specifically set up for the safe passage of cargo ships.  This corridor is intended to be neutral ground, allowing civilian vessels to navigate without fear of attack or damage.  By placing mines in this area, Russia may be violating international laws that are designed to protect neutral shipping. 

To ensure the safety of neutral shipping, precautions should be taken, such as warning ships about the presence of mines or avoiding mining areas designated for innocent passage.  While Russia issued a general warning about mines in shipping routes in July 2023, this notice has been viewed as insufficient.  The Russian Defense Ministry referred to a single mine sighting without providing detailed information about the numerous mines laid in the area, which would be critically important information to seafarers. 

Following the suspension of the Black Sea Grain Initiative, Russia has indicated intentions to target vessels entering or leaving Ukrainian ports and has carried out several strikes on the port of Odesa, disrupting commercial shipping in the region.  Todor Tagarev, Bulgaria’s Minister of Defense and member of a new trilateral Mine Countermeasures Black Sea task force noted, “Russia has been blocking maritime traffic for many months now,” highlighting that “there are a number of sea mines that present risks… along with threats from Russian UAV and missile attacks.”

Moreover, as discussed above Russia may be infringing upon two important legal principles under customary international law: the principle of distinction and the right of innocent passage.

Can Russia Be Held Accountable?

So, what can be done about these violations? 

International law provides mechanisms for accountability.  States affected by Russia’s mines, such as Ukraine, Turkey, Romania, and Bulgaria, could bring a case against Russia before the International Court of Justice.  The International Court of Justice can hear disputes between states and potentially order Russia to stop these activities or pay damages for any harm caused.

On the other hand, Russia might try to defend its actions by arguing that it did not intend to specifically target commercial shipping or that it is not bound by the VIII Hague Convention because it is not a signatory.  However, many of the treaty’s rules have become part of customary international law, meaning that Russia is still expected to follow them.  Additionally, intent is only relevant in certain cases, and the widespread damage caused by these mines may be enough to establish liability regardless of Russia’s motives.

Conclusion

Russia’s use of naval mines in the Black Sea is not just a military strategy—it has real-world consequences for civilian lives and international shipping. By mining the humanitarian corridor created to facilitate the safe navigation of civilian cargo ships, as well as by allowing its mines to drift far beyond their intended areas, Russia appears to be creating risks for commercial vessels and civilians in Ukraine’s territorial waters.  As such, Russia’s actions in the Black Sea humanitarian corridor does not align with key doctrines of international law, jeopardizing civilian safety and challenging the integrity of international legal frameworks designed to uphold peace and security.

As the conflict continues Russia continues to violate international law. However, the international community will be watching closely to see how these actions are addressed, and whether Russia will be held accountable for its violations of international law.

Status of the Wagner Group and can Russia be held accountable for their crimes?

Status of the Wagner Group and can Russia be held accountable for their crimes?

Read the Original on the Center for Civil Liberties Website

Authors: Dr. Gregory P. Noone and Sindija Beta, PILPG, and Camila Rodriguez, Adam Zuro, Bailey Higgs and Rene Kathawala, Orrick, Herrington & Sutcliffe

Background and Relationship with Russia

The Wagner Group (“Wagner”) appeared in 2014 as a military force “for hire” that assisted Russia in the illegal annexation of Crimea. Since its inception, Wagner has also been hired by Syria and various African nations to provide a wide variety of services, including military training, combat operations, spreading of disinformation, and aiding in certain mining operations. Wagner has also been heavily involved in the full-scale invasion Russia has been conducting in Ukraine since February 2022. Wagner has been accused of committing several war crimes including rape, mass murder, torture, and looting. However, up until June 2023, connecting the Russian government to Wagner was challenging for the international community as the Russian government has historically denied any connection to Wagner. However, in June 2023 Nikolai Pankov (Russia’s Deputy Defense Minister) announced that “volunteer formations” would be asked to sign contracts with the Ministry of Defense, thereby publicly unraveling Russia’s involvement with Wagner and opening the door for the international community to connect Wagner to the Russian government. The announcement prompted Yevgeniy Prigozhin, Wagner’s leader at the time, to reply that Wagner would not sign contracts. On June 23, 2023, Prigozhin released a series of videos denouncing the Russian military and announcing that Wagner would “march for justice” against it. However, the “rebellion” only lasted 24 hours and despite Wagner’s successful advance towards Moscow. On June 24, 2023 Prigozhin ordered the Wagner fighters to retreat in order to “avoid bloodshed.”

Prigozhin is said to have halted the advance on Moscow after brokering a deal with President Vladimir Putin, which allowed Prigozhin to depart for Belarus. Putin told Wagner fighters that they could join the Russian army, or they could go to Belarus with Prigozhin. In stark contrast to earlier statements from Russian government officials, soon after the Wagner uprising, Putin made a statement saying that the Russian government had “…fully financed this group from the Defense Ministry, from the state budget.” According to public statements, from May 2022 to May 2023, the Russian government allocated 86.2 billion rubles ($1 billion USD) to Wagner in the form of salaries and incentives and an additional 80 billion rubles ($940 million USD) to the Concord company (allegedly Wagner’s owner) for supplying food and services to the Russian army. While it had been announced that Prigozhin would go to Belarus following the abandoned revolt, Prigozhin disappeared from the public eye after June 24, 2023. There were multiple media reports speculating about Prigozhin’s whereabouts until August 23, 2023, when it was announced that Prigozhin, along with nine other people including Prigozhin’s right-hand man Dmitry Utkin, had been killed in a private jet crash.

The events from June 2023 have opened the door for the international community to connect Wagner to the Russian government, which may help in holding Russia accountable for Wagner’s actions. For example, after Prigozhin publicly refused to sign the aforementioned contracts with the Ministry of Defense, his press office’s Telegram wrote on June 11, 2023, that Wagner was already “built into the overall system…[and] according to the orders of Gerasimov and Shoigu, complies all its actions and fulfills the tasks set out by Army General Surovikin.” This is a significant statement because, if Wagner is part of, or subsumed into, the Russian military, the result is that Russia is wholly responsible for Wagner’s actions and no further analysis is necessary.    

Are Wagner Members Mercenaries and Is Russia Accountable?

While many articles colloquially describe Wagner as a mercenary group, Wagner’s legal status is up for debate and depends on a myriad of facts and circumstances. On the one hand, if Wagner is deemed to be part of Russia’s military and the Russian government can be considered to exercise control over the acts of Wagner, Russia could be held responsible for Wagner’s behavior just as Russia is responsible for the Russian armed forces’ actions. On the other hand, if Wagner is deemed to be a mercenary group under international law, it may be less likely that Russia would face any consequences for Wagner’s actions unless it could be established that Wagner is receiving orders from the Russian government.

Generally, in an international armed conflict, a mercenary is any person who meets the following six-part definition under Article 47 of the Additional Protocol I to the Geneva Conventions of 1949 (“Protocol I”). All six prongs must be satisfied for a person to meet the definition of a mercenary:

1. A mercenary “is specially recruited locally or abroad.” “Specially recruited” means that the group intentionally and specifically recruits individual members to participate in armed conflicts.

2. A mercenary “does, in fact, participate directly in the hostilities.”

3. A mercenary “is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that party.”

4. A mercenary “is neither a national of a party to the conflict nor a resident of a territory controlled by a party to the conflict.”

5. A mercenary “is not a member of the armed forces of a party to the conflict.”

6. A mercenary “has not been sent by a State that is not a party to the conflict on official duty as a member of its armed forces.”

Whether Wagner is considered a mercenary group under the narrow definition under Protocol I, will depend on the conflict in question. For example, it is unlikely that a majority of Wagner members would qualify as mercenaries in Russia’s full-scale invasion of Ukraine, given that many members are reportedly Russian, which is a “party to the conflict” (and as a result fails the fourth prong above). In addition, if Wagner is already “built into the overall [military] system” and complying with “all its actions and fulfills the tasks set out by Army General Surovikin” then there is an argument to be made that they are in fact part of the Russian military (and as a result fails the fifth prong above). Outside of Ukraine, however, Wagner has operated in many different states and regions across the world, including in Syria, Libya, Mali, Sudan, and the Central African Republic. As Russia is not a “party to the conflict” in these regions—because it is not directly involved in the conflict there—Russian Wagner members could potentially be deemed mercenaries if they meet the other five prongs. Mercenary status would have to be determined on a case-by-case basis. Nonetheless, it is important to note that Russia withdrew its state party status from Protocol I in 2019 and the Protocol has not yet gained a customary law status

One convention that may be used to attribute some responsibility to Russia for a connection to Wagner as a mercenary group is the International Convention against the Recruitment, Use, Financing, and Training of Mercenaries, adopted by the United Nations General Assembly of 1989 (the “1989 Mercenary Convention”), which established criminal offenses for the recruitment, use, financing, and training of mercenaries and imposes a number of obligations on states.

Article 1 of the 1989 Mercenary Convention uses Protocol I’s definition of mercenary and further expands it to situations where a person:

1. Is specially recruited locally or abroad for the purpose of participating in a concerted act of violence aimed at:

   a. Overthrowing a government or otherwise undermining the constitutional order of a state; or

   b. Undermining the territorial integrity of a state;

2. Is motivated to take part therein essentially by the desire for significant private gain and is prompted by the promise or payment of material compensation;

3. Is neither a national nor a resident of the state against which such an act is directed;

4. Has not been sent by a state on official duty; and

5. Is not a member of the armed forces of the state on whose territory the act is undertaken.

Under Article 5 of the 1989 Mercenary Convention, states are prohibited from recruiting, financing, or training mercenaries, including for “…the purpose of opposing the legitimate exercise of the inalienable right of people’s to self-determination, as recognized by international law, and shall take, in conformity with international law, the appropriate measures to prevent the recruitment, use, financing or training of mercenaries for that purpose.”

While it could be argued that Wagner’s actions both in Russia’s full-scale invasion of Ukraine and in other international conflicts could meet the definitions of mercenary under Article 1 of the 1989 Mercenary Convention, Russia is not a signatory to the convention, and therefore it is not clear whether Russia could be deemed to have failed any state obligations under Article 5 of the 1989 Mercenary Convention (even with Putin’s admission that Russia financed Wagner).      

There is very limited case law concerning mercenary activity in armed conflicts. In those limited cases where legal actions were taken, they involved individual members of a mercenary organization, not the organization itself, and much less the state connected to such a mercenary group.

Can Wagner’s Actions be Attributed to Russia under Other Principles of International Law?

To determine whether Wagner’s actions can be attributed to Russia under international law, a starting point is the Articles on the Responsibility for States for Internationally Wrongful Acts (the “ASR”). The ASR establishes criteria for determining whether states are legally responsible for certain wrongful acts, including the wrongful actions of groups such as Wagner.     

The ASR provides that an act by a person that is not an “organ” of the state can be attributable to the state in one of four ways, two of which are relevant to the analysis of Russia’s responsibility for the actions of Wagner. First, ASR Article 5 finds attribution to a state when a person or entity that is not an organ of the state is “…empowered by the law of that State to exercise elements of the governmental authority…provided the person or entity is acting in that capacity in the particular instance.” Second, ASR Article 8 finds attribution to a state if, “[t]he conduct of a person or group of persons…is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”

The essence of ASR Article 5 is the privatization of a public function and covers a narrow set of circumstances. To attribute responsibility to a state, ASR Article 5 sets out three requirements: (i) the entity must be empowered by the internal law of the state; (ii) the entity must be authorized to exercise prerogatives of public authority; and (iii) the conduct has been committed when the person or group of persons acted in that capacity. If these requirements are satisfied, then the entity’s conduct “shall be considered an act of the State…even if it [i.e., the entity] exceeds its authority or contravenes instructions.” In other words, Russia need not have ordered Wagner to commit atrocities in order for those atrocities to be attributed to Russia. When weighing the requirements, the key question is whether, even if only to a limited extent or in a specific context, the entity has been empowered to exercise specified elements of governmental authority, even if that entity “has not been officially empowered by law to exercise elements of the governmental authority” (paras 92 – 93 (emphasis added)). For example, an entity may be empowered to act by domestic law even if its exercise of authority involves independent discretion or power to act or if the conduct was not in fact carried out under the control of the state (97 – 98).

Following the requirements outlined above, to determine whether Wagner’s actions could be attributed to Russia, one must establish that (i) Wagner has been empowered by Russian law; (ii) to exercise the military elements of the Russian government’s authority; and (iii) such conduct has been committed by Wagner in such capacity.

With respect to the first element regarding empowerment by Russian law, Russian law prohibits the “creation of an armed formation (association, detachment, squad or other group) not provided for by federal law, as well as the leadership of such a formation or its financing.”[1] Punishment for state officials committing such crimes is provided by Article 205.1 Section 2 of the Russian Criminal Code, which also classifies such financing under the heading of “terrorist activities.” Russian law does not specify whether the prohibition of the “creation of an armed formation” applies only to domestic armed formations or also to those operating outside Russia’s borders.[2] Should the prohibition only apply to armed formations inside Russia, as discussed later, this law may nevertheless be relevant because Wagner had trained in Russia.

Thus, Putin’s admission that, at least for a time, the Ministry of Defense funded Wagner gives rise to at least two questions: (i) was Wagner “provided for by federal law” (outside of the Defense Ministry’s funding); and (ii) if not, did Wagner’s total financial support by the Ministry of Defense suffice to make Wagner ”provided for by federal law”? The predicate to answering these questions is determining what it means to be “provided for by federal law.” It is of note that no known Russian law provides for the creation of Wagner. Nonetheless, if Wagner was in some way “provided for by federal law” as an “armed formation,” this would support the position that it was “empowered” by Russian law to exercise what would otherwise be a government prerogative. However, if Wagner was not “provided for by federal law,” then this would support an allegation that Russian officials at the Ministry of Defense financed armed activity in violation of Article 208 Section 1 of the Russian Criminal Code, which Russia itself implies is terroristic and which could, with additional detail, trigger Russia’s obligation to investigate under The International Convention for the Suppression of the Financing of Terrorism Article 9(1).

Alternatively, the existence of a contractual relationship between the state and the private entity may be enough to establish a sufficient link to show express authorization or ratification by the state.[3] Moreover, Putin’s admission that Russia provided the financing for Wagner could mean that there are contracts between Russia and Wagner, and such contracts could be analyzed to determine whether Wagner was empowered by Russian law. There is not enough information in the public domain to make this determination, and even if the contracts were publicly available, there is no clear standard under ASR Article 5 of what contractual language alone would be sufficient to find that a state had authorized or empowered a private entity. For example, it is unclear whether a contract that specifies a broad delegated function will suffice, or whether it must detail the precise activities that the non-state entity is authorized to carry out.

In terms of the second and third requirements, Russia’s call for Wagner to sign a contract with the Ministry of Defense and Putin’s confession of financing Wagner makes certain acts, such as participation in combat in Ukraine, appear to be of a governmental, rather than a private nature. Under ASR Article 7, states may be subject to liability via ASR Article 5 for ultra vires conduct, i.e., conduct that is either in excess or contravention of the authority delegated, so long as the ultra vires conduct was performed during the commission of the governmental function. Ultra vires is a Latin phrase, meaning “beyond the powers” and plainly means an action by a company or its agent (such as Wagner) that exceeds the legal scope of its authority. In the case of Russia’s full-scale invasion of Ukraine and other conflicts, ASR Article 5 may still be invoked even if Wagner’s behavior were ultra vires, i.e., beyond or inconsistent with any instructions given by Russia, provided that it was performing governmental functions during this alleged criminal behavior. This determination would be a fact-specific and fact-intensive inquiry, which would require evidence beyond what is currently in the public domain. This fact-specific determination could include conflicts outside Ukraine; however, it is not as likely to find attribution in such scenarios as it appears that Wagner was hired by some states for their own internal conflicts. 

Under ASR Article 8, if fighters violating the Law of Armed Conflict were acting under a state’s instructions, direction, or control at the time of their actions, then a court may attribute such actions to the state. Under international law, “control” may be interpreted in one of two ways: the “effective control” test, which requires detailed or tactical control over the acts that violate international law, and the “overall control” test, which considers the broader relationship between the state and the non-state actor. For purposes of ASR Article 8, the International Court of Justice (“ICJ”) uses the “effective control” test, which is more stringent and would require “showing that Russia directed or enforced the perpetration of human rights violations and international crimes…” by Wagner. Given that there is little information on the command structure of Wagner’s military operations and Russia’s historical denial of a connection to Wagner, attributing Wagner’s actions to Russia under the “effective control” test would be challenging as it would require an operation-by-operation analysis and only those operations in which Russian forces commanded and led the assault would count. On its own, Putin’s admission of financing Wagner is insufficient to establish attribution under the “effective control” test.

On the other hand, some have argued that there is enough evidence to show that Wagner is under Russia’s “overall control” and there may be a push in the international community to use the “overall control” test instead of the “effective control” test. In fact, a Dutch court recently found that Russia had “overall control” of separatists in Ukraine during the downing of the civilian aircraft MH17, and in its conclusion the Dutch court pointed “… to the close connections between rebel leaders and the Russian intelligence service, the material and operational support Russia provided to the rebels, and evidence that Russia provided instructions to the rebels regarding their military operations. In addition, the court found that Russia and the rebel groups conducted ‘mutually coordinated military operations’.” While the ICJ will have the ultimate say on state responsibility, this recent Dutch ruling may open the door for the ICJ to consider using the “overall control” test instead of the more stringent “effective control” test if a case was ever brought against Russia. Until then, more information will be needed in order to attribute Wagner’s actions to Russia under the ASR.

Conclusion

While countries have publicly denounced Wagner and governments such as the United Kingdom have declared that Wagner has been a tool used by Russia to further its international agenda, more information is needed regarding Wagner’s command and control structure in order to be attributed to Russia or for Russia to be held accountable for Wagner’s actions.  With respect to accountability via ASR, additional information is needed to make a determination as to whether Wagner acted under a sufficient degree of Russian control, as per Article 8, or – even without such control – was empowered by Russian law to act, as per Article 5. Nevertheless, Putin’s declaration that Wagner has been financed through the Russian budget and the statement by Prigozhin regarding Wagner’s compliance with the orders of Russian officials Gerasimov and Shoigu, indicates that Wagner’s actions could be attributed to Russia.

[1] Article 208 Section 1 of the Russian Criminal Code. Note that Article 359 Section 1 of the Russian Criminal Code prohibits the financing of mercenaries; though as discussed earlier, Wagner’s fighters are unlikely to be considered mercenaries in this context.

[2] Participation in such formations on foreign soil is prohibited by Sections 2-3 of Article 208; but only when such participation is against the interests of the Russian Federation.

[3] Kidane, W. (2010). The status of private military contractors under international humanitarian law. Denver Journal of International Law and Policy, 38(3), 411.; Kelemen, B. (2020). Responsibility for Human Rights Violations of Private Military and Security Companies on EU Borders: Case Study of the Contracts of the European Asylum Support Office. EU and Comparative Law Issues and Challenges Series, 4, 164-65.

Photo by Sonia Dauer on Unsplash

The Legality of the Use of Unmanned Maritime Systems under International Law

The Legality of the Use of Unmanned Maritime Systems under International Law

Read the Original on the Center for Civil Liberties Website

Authors: Dr. Gregory P. Noone and Sindija Bēta, PILPG, and Ropes & Gray

Since Russia’s full-scale invasion of Ukraine on February 24, 2022, Ukraine has contended with both material and manpower disadvantages. To counteract Russian asymmetrical naval superiority in the Black Sea, the Ukrainian military has developed unmanned maritime systems, which can inflict damage at a relatively low cost to Ukraine. Ukraine has effectively sunk or severely damaged numerous Russian warships and other strategic targets, including the Russian guided missile cruiser Moskva, the corvette Ivanovets (a Tarantul class missile ship), a Bykov class corvette, the landing ship Caesar Kunikov, a high-speed patrol boat, and the Kerch bridge, which links Crimea to Russia.  In response, Russia has redeployed and dispersed the bulk of its Black Sea Fleet far from the Ukrainian coast and Crimea, allowing Ukraine to restart exports from its primary port of Odesa.

The use of unmanned maritime systems is a relatively new development and, as such, its legality under international law is subject to debate. This article examines the legal framework that regulates the use of unmanned maritime systems and, in particular, whether Ukraine’s usage of these systems is legal under the Law of Armed Conflict and International Law.   

The unmanned maritime systems that Ukraine deploys fall into two categories: unmanned surface vehicles (“USVs”), of which the Magura V5 and the Sea Baby have been the primary two types identified; and unmanned undersea vehicles (“UUVs”), of which the Marichka and the Toloka are the primary two types identified. Ukraine operates its USVs by remote control via satellite, and are equipped with high definition night vision camera systems for navigation and targeting.They are each equipped with backup communications systems, allowing the person controlling the USV to remain in control even in the event of disruption. The USVs typically attack by navigating to the target and detonating the explosives on board. The Magura V5 is designed to strike warships at sea, whereas the larger Sea Baby is intended for stationary targets, such as ships at port and bridges. The Sea Baby has also been equipped to lay mines to target Russian naval ships navigating through the Black Sea. Individual USVs tend to do little damage, but multiple USV hits can sink a ship. The Economist estimates that Ukraine’s USVs have knocked out approximately ten Russian ships, while the Wall Street Journal speculates around two dozen Russian warships have been sunk or damaged.

Ukraine’s UUVs are relatively new and public information about them is limited. Reporting has indicated that they are both remote-controlled and are equipped with sophisticated cameras, sonar, and hydrophone for navigation. Initial reports suggest the UUVs will be used in demining operations, and most likely to also attack enemy ships when operationally feasible.

An analysis of USVs and UUVs can begin – but not end – with the question of whether these crafts qualify as “ships” or “vessels” (the terms are used interchangeably) under the United Nations Convention on the Law of the Sea (“UNCLOS”), and if so, whether they qualify as “warships.”  Under UNCLOS and customary international law, vessels are entitled to certain navigational rights such as the right of transit passage through international straits. If a vessel is further classified as a warship, that permits the vessel to exercise “belligerent rights” during wartime. Belligerent rights would include attacking enemy ships, enforcing blockades, and controlling neutral vessels in the vicinity of naval operations.

UNCLOS—perhaps the most informative source of international maritime law and to which both Ukraine and Russia are signatories—does not explicitly define “ship,” but it does require that each country set the requirements for the registration of ships in its territory, and that any such ship carry the flag of the applicable country. Warships, on the other hand, are explicitly defined under UNCLOS as a ship that belongs to the armed forces of the applicable country, have external markings reflecting the applicable country, are commanded by a commissioned officer, and are manned by a crew subject to regular armed forces discipline. With respect to the definition of “warship” (and the “ship” definitions that also have this requirement), it is not settled whether being remote-controlled satisfies the “manned” requirement.

Based on publicly available information, Ukraine has not flagged the USVs or UUVs as “ships” or “warships,” nor has it attempted to exercise any navigational rights on their behalf beyond operations in the Black Sea region. In addition, Ukraine’s USVs and UUVs are not “manned” in the traditional sense under UNCLOS as there is no crew or commissioned officer on board to control the ship.Given these facts, it is unlikely that, under current interpretations of UNCLOS, Ukraine’s USVs and UUVs would qualify as a “warship.” Although USVs and UUVs likely do not constitute warships, that does not mean that they are precluded from attacking Russian military targets. To determine whether USVs and UUVs can be used as lawful means of warfare, the context in which they are employed is paramount.      

The primary sources of law governing the usage of weapons systems as lawful “means of warfare” are the 1949 Geneva Conventions, a series of international treaties establishing the Law of Armed Conflict between the parties to the treaties (which include both Ukraine and Russia as states parties), and specifically, Additional Protocol I to the 1949 Geneva Conventions (“AP I”) with respect to the usage of means of warfare in an international armed conflict. Additionally, the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (“San Remo Manual”) is a codification of customary international law governing naval warfare, and largely applies the principles of the Geneva Conventions to naval warfare.  “Means of warfare” are weapons and weapons systems that are capable of conducting an “attack,” which is defined under Article 49 of AP I as an offensive or defensive act of violence against an adversary.       Russia and Ukraine are involved in an active military conflict, and Ukraine is using USVs as weapons to target enemy ships and military infrastructure, which are classic examples of an “attack.”

Under AP I and the San Remo Manual, in order to justify the use of USVs and UUVs (or any weapon or weapons system, for that matter) a country’s military must do the following:

• conduct legal review of new means of warfare prior to deployment;

• distinguish between military and civilian targets (including accepting surrender of targets where the surrender is evident to the attacker); 

• be capable of assessing proportionality (i.e., weighing the military advantage of an attack on a particular target against the attack’s expected collateral damage to civilians or civilian objects);  

• take all feasible precautions to prevent damage to civilians (including canceling attacks if proportionality rule will be breached and provide effective advance warning if circumstances permit); and

• have command accountability. 

As a general matter, it is rare for a means of warfare to be considered illegal under international law per se. To be per se illegal, such a weapon would need to be incapable of complying with the requirements set forth above under any circumstances—a classic example of this would be a biological weapon, whose potential to spread uncontrollably renders it unable to distinguish between civilian and military targets. If a weapon is not per se illegal, its legality will depend on both the weapon’s characteristics as well as the particular circumstances of its usage. 

Ukraine’s usage of USVs and UUVs to target Russian military vessels and infrastructure suggests that Ukraine has developed these systems to comply with the principles set forth under the Law of Armed Conflict, specifically AP I and the San Remo Manual. In particular:  

• As a party to AP I, Ukraine is responsible for reviewing USVs and UUVs for compliance with AP I prior to deployment. There is no publicly available information regarding these reviews—countries do not typically publish these reviews for strategic reasons, and Ukraine would be understandably unwilling to disclose detailed information about new weapons systems to its enemy during wartime. Nevertheless, the fact that Ukraine otherwise appears to be making efforts to comply with relevant international law with respect to USVs and UUVs as described in this article suggests Ukraine has most likely conducted the required legal review of these weapons systems.

• Ukraine’s USVs and UUVs can distinguish between military and civilian targets because they are remote-controlled and equipped with sophisticated camera and navigation systems that allow their operators to identify military targets, and navigate them to avoid civilian vessels and infrastructure. 

• Ukraine’s USVs and UUVs are capable of fulfilling the proportionality requirement because their camera and navigation systems allow operators to get a complete picture of the target and surrounding area to identify the level of risk of collateral damage to civilians and civilian objects, as well as their relatively low payload reduces the risk of collateral damage. In addition, Ukraine’s USVs and UUVs have “redundant” communications systems that reduce the likelihood of remote control being disrupted, which allows the operator to maintain control of the system until the attack is completed and, if necessary, cancel the attack if circumstances change.   

• Ukraine’s USVs and UUVs also comply with the command requirement because they are under the control of human operators, and responsibility can be assigned to the operators and/or the operators’ commanding officers who ordered the attack.

As noted above, Ukraine’s UUVs are more difficult to assess because they are relatively new and less is known about them, including the extent to which they have been used in the Russian war. However, the same analysis of the legality of USVs would apply to UUVs – that they would be permissible weapons systems under international law provided that Ukraine complies with the principles of AP I and the San Remo Manual as described above. 

Additionally, the 1907 Hague Convention VIII (“Hague VIII”) and the San Remo Manual impose additional restrictions on waterborne explosives (mines and torpedoes) that require them to sink or be disabled after a certain time so they become harmless and are not a permanent hazard to civilian vessels. An additional related question has arisen concerning whether USVs would be considered “torpedoes” under international law and thus be regulated under Hague VIII. Ukraine’s USVs and UUVs share characteristics with a torpedo in that they travel through water to attack enemy targets. Nonetheless, Hague VIII is more than one hundred years old and was intended to protect against unsophisticated, non-guided weapons systems, such as torpedoes and mines, so its applicability is questionable. And unlike the traditional torpedoes that Hague VIII intended to protect against, Ukraine’s USVs and UUVs have advanced remote control and satellite guidance, and can be steered to avoid civilian vessels and infrastructure. Moreover, their “redundant” communications systems reduce the risk of an operator losing control of the USV or UUV and therefore unlikely that a USV or UUV would become a permanent hazard. While the classification of Ukraine’s USVs and UUVs as torpedoes under Hague VIII as a matter of international law is questionable and unsettled, such a classification would provide an additional justification of their use under international law given that their usage, guidance systems, and control appear to comply with the conditions of permissible torpedoes under Hague VIII and the laws of warfare under the Geneva Conventions and San Remo Manual discussed above.    

Based on what is known about the USVs and UUVs – the nature of the weapons systems, and more importantly how Ukraine has deployed them in the war thus far – their usage in the reported circumstances appears to be in compliance with international law and the Law of Armed Conflict.

Photo by Thomas Haas on Unsplash