Abstract
This article considers what the responsibility to protect populations from atrocity crimes (R2P) requires States to do in Ukraine. It begins by considering how the R2P’s ‘three-pillar’ implementation strategy is to be understood in relation to a situation in which atrocities are being perpetrated not by a State against its own population but by an aggressor State; and then considers the parallels between what is required of States by the political commitment to the R2P, and what is required by the legal obligations to prevent genocide and to cooperate to end serious breaches of peremptory norms. The second part of the article then considers a series of options that may be pursued by States in fulfilment of their R2P and corresponding legal obligations, from options falling short of military intervention (including legal proceedings, economic and diplomatic sanctions and military assistance) through to the possibilities of unilateral military intervention and UN peacekeeping.
1 Introduction*
As of mid-2022, Russia’s military operation in Ukraine was not going to plan. What was anticipated to be a rapid conquest of the capital Kyiv, installation of a puppet government and occupation of the entirety of Ukraine did not eventuate, and is now likely off the cards.1 In the face of unexpected Ukrainian opposition and Western unity, and absent any decisive military success, Russia has become ever more impervious to international opinion and increasingly brutal. Civilians are being directly targeted, and killed in their thousands in indiscriminate attacks.2 Early investigations suggest that the attacks may amount to war crimes and crimes against humanity;3 and – at the time of writing – they show no sign of relenting.
In the UN General Assembly’s 2005 World Summit Outcome Resolution, States agreed that each State had the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity – collectively referred to as atrocity crimes – and that the international community should ‘help States to exercise this responsibility’. In that same Resolution, States also agreed that the ‘international community, through the United Nations, has a responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters vi and viii of the Charter’, to help to protect populations from atrocity crimes, and that they were ‘prepared to take collective action, in a timely and decisive manner, through the Security Council, … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations’ from atrocity crimes.4 Since 2005 the responsibility to protect (R2P) has been referenced in 87 resolutions of the UN Security Council and 32 resolutions of the General Assembly.5
This article considers what the R2P means for Ukraine. It begins by considering two preliminary conceptual issues: first, how is the R2P’s ‘three-pillar’ implementation strategy, outlined by the UN Secretary-General in 2009,6 to be understood in relation to a situation in which atrocities are being perpetrated not by a State against its own population but by an aggressor State; and second, who owns the responsibility to respond to atrocity crimes when national governments are unable to provide such protection themselves – the international community, or individual States? The remainder of the article then considers a series of options that may be pursued by States in fulfilment of their responsibility to protect the Ukrainian population from atrocity crimes, from non-military measures through to UN-mandated peacekeeping.
2 Conceptualising the Responsibility to Protect in Ukraine
In order to understand the R2P in relation to Ukraine, two preliminary conceptual points warrant consideration.
The first concerns the applicability of the R2P’s ‘three pillar’ implementation strategy to the situation in Ukraine. The three-pillar strategy was outlined by the Secretary-General in 2009, and comprises: first, the primary responsibility of States to protect their own populations from atrocity crimes; second, the responsibility of the international community to assist States to implement their primary responsibility, through international assistance and capacity building; and third, timely and decisive response, when a State manifestly fails to protect its population.7 The Secretary-General has stressed that the three pillars are not sequential, and that it is unnecessary to ‘clearly determine whether an activity falls exclusively under one or another of the three pillars’.8 Nevertheless, ‘pillar three’ is typically conceptualised as kicking in when the State that is manifestly failing to protect its population from atrocities is itself committing or at least complicit in the commission of those crimes. This is typically contrasted with situations with cooperative national governments, in which attention is directed to pillars one (the primary responsibility of States) and two (international assistance and capacity building). What is highlighted by the situation in Ukraine is that this ‘three pillar’ framework will not necessarily aid understanding of what is required by the R2P in all scenarios. The Secretary-General has recognised this, noting that ‘international assistance under pillar two … can also be a pillar three response insofar as it constitutes a timely and decisive response’.9 This scenario – and more broadly, the responsibility of the international community to assist a State to protect its population from atrocities being committed in its territory by an aggressor State – has received scant attention in the R2P lexicon.
The second preliminary point that bears noting is the matter of who owns the responsibility to protect populations from atrocity crimes, when national governments manifestly fail to provide such protection themselves. In R2P narratives, this responsibility is primarily described as belonging to the international community at large.10 The World Summit Outcome Resolution describes the responsibility to use ‘appropriate diplomatic, humanitarian and other peaceful means’ as a responsibility of the ‘international community, through the United Nations’, and it describes the responsibility to ‘take collective action, in a timely and decisive manner’ as a responsibility to be exercised ‘through the Security Council’.11 The Secretary-General’s 2009 and 2012 reports on the R2P touched briefly on measures that might be imposed by individual States – both recognised, among other things, the possibility of States taking diplomatic measures, and the 2009 report recognised the possibility of States taking steps to restrict the flow of arms ‘without formal prior authorisation from the Council’12 – but beyond this, the disaggregated responsibility of States to respond to atrocities beyond their borders has not been elaborated.
While the R2P principle does not itself shed much light on what individual States are expected to do to respond to atrocity crimes, guidance is available in the form of parallel obligations in international law. Two are particularly relevant.
The first is the obligation of States Parties to the Genocide Convention to prevent genocide.13 In the 2007 Bosnian Genocide Case, the International Court of Justice (icj) described that obligation as requiring States to ‘employ all means reasonably available to them, so as to prevent genocide so far as possible’.14 The Court said further that the obligation should be interpreted in light of a State’s ‘capacity to influence’ the genocidal actors15 – in other words, the obligation may require different things of different States. In the case of Ukraine, while it seems unlikely that Russia is currently committing genocide, there are warning signs that the violence may turn genocidal.16 Thus, States Parties to the Genocide Convention are legally obliged to use all means reasonably available to them to prevent the commission of genocide in Ukraine.
The second legal obligation that elaborates the individual responsibility of States to respond to atrocity crimes is the obligation to cooperate to end serious breaches of peremptory norms of international law. The prohibitions of genocide, war crimes, and crimes against humanity are all generally regarded as peremptory in nature;17 thus, an obligation to cooperate to end serious breaches of peremptory norms encompasses an obligation to cooperate to end atrocity crimes.
The International Law Commission (ilc)’s Draft Conclusions on Peremptory Norms of International Law (Jus Cogens), adopted on first reading in 2019, assert that States ‘shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law (jus cogens)’.18 This obligation was already contained in the ilc’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts; however, in its commentary to those Articles, the ilc acknowledged that the duty to cooperate to end serious breaches of peremptory norms ‘may reflect the progressive development of international law’.19 Conversely, in its commentary to the Draft Conclusions on Peremptory Norms, the ilc describes the obligation as ‘now recognised under international law’.20 The ilc has described the obligation to cooperate to end serious breaches of peremptory norms as a ‘positive duty’, requiring ‘a joint and coordinated effort by all States to counteract the effects of these breaches’.21
Drawing on the approach taken by the icj in the Bosnian Genocide Case, and using that to aid in the interpretation of the obligation to cooperate to end serious breaches of peremptory norms, including atrocity crimes, it would seem that States should be expected to use all available means, so far as circumstances permit, that may deter the ongoing commission of those crimes. What this means for States in relation to Ukraine, in light of the existence of credible evidence that crimes against humanity and war crimes are being committed, is that if there is even a possibility that a particular action could contribute to a build-up of pressure that might ultimately persuade Russia to desist from committing those crimes, then States are required to pursue that course. Not just because of their political commitment to the R2P, but because of their obligation to cooperate to end serious breaches of peremptory norms – and perhaps also, if it were to be accepted that there is a risk of genocide, because they are party to the Genocide Convention. The remainder of this article considers what these possible courses of action might be.
3 Options Falling Short of Military Intervention
As noted above, in the 2005 World Summit Outcome Resolution, States recognised that ‘the international community, through the United Nations, … has a responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters vi and viii of the Charter’, to protect populations from atrocity crimes. In line with the description of this responsibility as one to be exercised ‘through the United Nations’, the Secretary-General’s 2012 report on the R2P, focusing on ‘timely and decisive response’, focused primarily on options available through the UN. The Secretary-General referred, among other things, to: ‘negotiation, enquiry, mediation, conciliation, [and] arbitration’, many of which ‘can be taken by the Secretary-General in his “good offices role”’; the appointment of special envoys or eminent persons to facilitate dialogue; and UN-facilitated mediation, fact-finding and commissions of inquiry.22
There seems little reason that the responsibility of the international community to use diplomatic, humanitarian and other peaceful means to protect populations from atrocity crimes should be exercisable only through the UN. And, indeed, the relevant passage of the World Summit Outcome was presumably not intended to be read in this way, because Chapters vi and viii of the UN Charter refer to arrangements outside the umbrella of the UN. In any case, the responsibility of the international community to ‘help States to exercise’ their primary responsibility to protect their own populations from atrocity crimes23 – also articulated in the World Summit Outcome Resolution, and clearly applicable to the situation in Ukraine – is not similarly expressed as being only exercisable ‘through the United Nations’; and as stated above, irrespective of any political commitment to the R2P, States are also individually responsible for cooperating to bring an end to serious breaches of peremptory norms of international law.
While States are individually responsible for helping States to protect their populations from atrocity crimes, and for cooperating to bring an end to serious breaches of peremptory norms, cooperation should nonetheless ideally be organised through the UN. The ilc, in its commentary on the obligation to cooperate in the Articles on State Responsibility, said that cooperation ‘could be organised in the framework of a competent international organisation, including the United Nations’.24 Similarly in its commentary to the Draft Conclusions on Peremptory Norms, the ilc stressed that ‘the collective system of the United Nations is the preferred framework for cooperative action’.25
Accordingly, the following discussion considers the ways in which States – through the UN so far as possible, but also, where appropriate, unilaterally and/or through any other cooperative arrangement – may honour their commitment to help the Ukrainian Government protect its population from atrocity crimes, and at the same time fulfil their obligation to cooperate to end serious breaches of peremptory norms.
Earlier this year, Justices Richard Humphreys (Ireland) and Lauma Paeglkalna (Latvia) published a paper outlining an escalating series of ‘non-warfighting measures’ that could be pursued by States in relation to Ukraine.26 That paper proposed a five-part typology of options, that speaks to the question of what States might do both to honour their R2P in Ukraine, and to fulfil their obligation to cooperate to end serious breaches of peremptory norms. That same framework is adopted here. The options proposed are: (i) an information war; (ii) legal proceedings; (iii) economic sanctions; (iv) diplomatic sanctions; and (v) military assistance.
3.1 An Information War
Russia’s invasion of Ukraine in 2022 was preceded and made possible by years of restrictions on freedom of expression in Russia, and the propagation of narratives about the Nazification of Ukraine and the threat to civilians in eastern Ukraine as well as to Russia itself.27 Following the invasion of Ukraine in February 2022, State-control of the information space in Russia was tightened further. Almost all independent media was banned, social media and foreign news sites were blocked, and dissemination of ‘fake’ information on the war in Ukraine was made punishable by up to 15 years in jail.28 Ukraine has also been affected: journalists and media workers in Ukraine have reportedly been attacked, kidnapped, tortured and killed, and Ukraine’s media and internet infrastructure has reportedly been ‘targeted by Russian forces in an attempt to disrupt access to information’.29
Russia’s control of the narrative about the war in Ukraine and restrictions on access to real information is limiting what might otherwise be domestic criticism regarding the perpetration of atrocities, and the war in general. In an opinion poll conducted in Russia in March, 21 percent of the population thought that the goal of the miliary operation in Ukraine was to rid Ukraine of nationalists and ‘de-Nazify’ the country, a quarter saw it as a defensive measure to protect Russia from attack, and almost half understood it as being about defending civilians, ethnic Russians or Russian speakers in eastern Ukraine. Reflecting these sentiments, almost half of all Russians expressed support for the war.30
Research suggests that any possibility of regime change in Russia – which could, in turn, feasibly bring an end to atrocities in Ukraine – would be more likely prompted by domestic public opinion than external pressure.31 Thus, countering Russian propaganda and providing the Russian public with access to real information regarding the war in Ukraine is one option available to States looking for ways to honour their responsibility to protect the Ukrainian population from atrocity crimes. As a first step, States could support independent media in Ukraine, block Russian propaganda internationally and promote access to information for Russian diaspora; however, providing access to information inside Russia is more difficult. In March 2022, a joint statement by human rights experts on the freedom of expression called for initiatives to ‘promote access to diverse and verifiable information, including ensuring access to free, independent and pluralistic media’,32 but stopped short of suggesting how this might be achieved. Humphreys and Paeglkalna cite a number of initiatives that have been attempted thus far, including efforts to hack Russian computer systems and media, and the dissemination of information about how to circumvent Russian web censorship.33 This is not to suggest that illegal interventions should be considered; but rather, to make the point that what is required by the R2P (and corresponding legal obligations) is out-of-the-box thinking regarding the full range of possibilities that might feasibly be available, within the bounds of international law, to directly or indirectly influence the perpetrators of atrocities.
3.2 Legal Proceedings
The existence of mechanisms to hold perpetrators of atrocities to account – and assurances and demonstrations that those mechanisms will be used – can serve as a powerful deterrent to the persisting commission of atrocities. In relation to the situation in Ukraine, accountability initiatives have already been launched on multiple fronts – indeed, at a speed unmatched by almost any other atrocity crime situation in history. Initiatives thus far include: the genocide case being pursued by Ukraine against Russia before the icj, alleging that Russia’s military operation was based on the false pretext of genocide;34 an investigation by the Prosecutor of the International Criminal Court into possible war crimes and crimes against humanity in Ukraine;35 the establishment by the Human Rights Council of the Independent International Commission of Inquiry on Ukraine;36 the establishment by Ukraine, Lithuania and Poland of a Joint Investigation Team, supported by the European Union Agency for Criminal Justice Cooperation;37 the commencement by some States of domestic criminal proceedings into alleged atrocity crimes, pursuant to the principle of universal jurisdiction;38 and a proposal for a Special Tribunal for Aggression against Ukraine.39
These initiatives rely on the political, financial and technical support, as well as the human resources, of States; thus, one of the ways that States can honour both their R2P and corresponding legal obligations is to provide such support to the maximum of their capacity. Such support may take the form of financial contributions, the provision of investigators, the sharing of evidence, assistance with the preparation of briefs for prosecution, support for the Ukrainian Prosecutors Office, technical and financial support for Ukrainian human rights documentation efforts, or the initiation of domestic criminal proceedings.40 The criticality of this support has been recognised by Ukrainian civil society: in February 2022, 40 Ukrainian civil society groups issued an appeal requesting the support of the international community in six areas, one of which was to ‘supply technology and support to groups recording Putin’s war crimes’, and to ‘fund the human rights groups and lawyers who will ensure that Putin and his cronies are one day brought to justice’.41
3.3 Economic Sanctions
Economic sanctions are one of the most important influencing tools available to States to halt the commission of atrocity crimes beyond their borders. In his 2012 report on the R2P, the UN Secretary-General recognised the importance of sanctions as part of a ‘timely and decisive response’ to atrocity crimes. The Secretary-General noted that coercive measures which ‘may be authorised by the Security Council’ under Article 41 of the UN Charter
include sanctions, which comprise freezing of financial assets of both the Government and individual members of a regime and imposition of travel bans; suspending credits, aid and loans from international financial institutions to Government officials located abroad; restricting the provision of other financial services to a Government or individual officials; [and] controlling the availability of luxury goods, weapons and related materials, and high-value commodities.42
Although the Secretary-General was talking here about measures which ‘may be authorised by the Security Council’ under Article 41 of the UN Charter, international law is clear that these measures may also be imposed by States acting unilaterally, so long as the imposition of such measures does not entail the breach of other legal obligations – such as obligations contained in trade treaties.43
Economic sanctions have frequently been imposed by States in response to human rights violations in the past, and the UN General Assembly has recommended their imposition. Among other things, the General Assembly has previously recommended that States: adopt ‘comprehensive and mandatory sanctions’;44 prevent the sale and supply of arms and military equipment to hostile regimes;45 economically ‘isolate’ a regime;46 close ports to vessels flying the flag of the sanctioned State and prohibit their own ships from entering the ports of the sanctioned State;47 refuse landing and transit facilities to aircraft;48 and boycott all trade with the sanctioned State.49
The sanctions imposed by Western States on Russia are among the most significant in recent history. Among other things, States have: frozen the assets of Russia’s central bank, preventing Russia from accessing its foreign currency reserves; excluded Russian banks from the swift international payments system; banned the export, sale and supply of goods and services to Russia and Russian elites; banned Russian oil and gas imports (the US); imposed or increased import tariffs on Russian goods; banned Russian planes from foreign airspace; and imposed asset freezes and travel bans on Russian oligarchs and senior government officials and their family members.50 Evidence suggests that these sanctions are starting to bite;51 however, bearing in mind the discussion above regarding the requirement for States to use all means reasonably available to them, the existing measures arguably do not go far enough. As Humphreys and Paeglkalna have shown, the sanctions imposed thus far are limited in a number of key respects: (i) they are aimed only at named individuals or entities and limited categories of activity; (ii) they invoke only limited aspects of the sanctioning State’s jurisdiction; (iii) they do not apply to all State actors; (iv) for the most part they do not apply to Belarus; and (v) no provision has been made for the confiscation of frozen assets or extra-territorial civil or criminal remedies.52 Humphreys and Paeglkalna discuss the shift seen since the 1990s away from comprehensive sanctions – generally a good thing, given what we now know about the negative impact of comprehensive sanctions on human rights – and stress that ‘“smart” versus broad sanctions are a policy choice, not a fixed rule’. Humphreys and Paeglkalna point to a number of reasons pertaining to the Russia/Ukraine situation for which broad sanctions might exceptionally be appropriate, including: the limited palette of available options, in light of Russia being both a permanent member of the Security Council and a nuclear power; and Russia’s status as a developed country, arguably making it less likely that comprehensive sanctions would result in ‘mass privation of civilians’.53
Measures to protect populations from atrocity crimes, including sanctions, should always comply with international law. In particular, sanctions must not negatively impact human rights in the targeted State, and they must not disregard the rights of sanctioned individuals.54 But in the face of ongoing atrocity crimes, sanctions should also not be overly cautious, and negative human rights impacts should not be assumed – but rather, should be assessed and considered, with a view to achieving a sanctions regime that applies maximum possible pressure on decision-makers. Additional measures that might be considered in relation to Ukraine include: extending sanctions to broad categories of activity, rather than specific individuals and entities; accelerating plans to wean Europe off Russian oil and gas; excluding all Russian banks from swift; extending sanctions to all Russian oligarchs and all State actors; imposing further sanctions on Belarus; and not just freezing but confiscating Russian assets.55 And, importantly, non-Western States – including China, Brazil and India, the markets of which remain open to Russia – should be encouraged to follow suit, not just in fulfilment of their responsibility to protect the Ukrainian population from atrocity crimes but in compliance with their corresponding legal obligations.
3.4 Diplomatic Sanctions
Sanctions may be political and diplomatic as well as economic in nature. At their most extreme, diplomatic sanctions entail the full severance of diplomatic relations, expressed by the closure of foreign embassies, the withdrawal of diplomatic staff and the expulsion of foreign diplomats. States have severed diplomatic ties with rogue regimes in the past, and indeed, the General Assembly has recommended that they do so – albeit rarely. In relation to South Africa during the apartheid era, for example, the UN General Assembly over a period of several years called on States to ‘terminate all collaboration with South Africa’ in the – inter alia – political and diplomatic fields.56 Similarly in relation to the Portuguese Territories in the 1960s, the General Assembly appealed to States to ‘break off diplomatic or consular relations with the Government of Portugal’.57 In the 1980s, the General Assembly called on States to ‘sever diplomatic, trade and cultural relations’ with Israel in relation to its occupation of the Palestinian Territories.58
Diplomatic sanctions imposed on Russia fall far short of the maximum available. Many Western States have expelled Russian diplomats, but for the most part these expulsions have been justified as a response to espionage rather than altered diplomatic relations.59 Denmark, for example, explained when it expelled 15 Russian ‘“intelligence officers” posing as diplomats’ that it did ‘not wish to break diplomatic relations with Moscow’.60 The US, similarly, described the diplomats it was expelling from New York as ‘intelligence operatives’, being expelled for ‘engaging in espionage activities that are adverse to our national security’.61
Some other steps have been taken in the diplomatic field: Russia has been suspended from the Council of Europe and the Human Rights Council;62 the EU has ceased holding regular bilateral summits with Russia;63 Latvia and Estonia have closed Russian consulates;64 and negotiations over Russia joining the Organisation for Economic Cooperation and Development and the International Energy Agency have been suspended.65 But at the time of writing no State had closed their embassy in Russia, ordered the closure of the Russian embassy on their territory, expelled a Russian ambassador or announced that it will sever diplomatic ties with Russia. Thus, these are additional tools that States have at their disposal if they wish to rachet up their response to atrocities in Ukraine. Even further along the path of a graduated diplomatic response, States also have the option – acting collectively – of utilising the General Assembly’s credentials process to effectively suspend Russia from participation in the General Assembly, following the example of the international response to apartheid in South Africa in the 1970s.66 Of course, the benefits of a complete severance of diplomatic relations, either bilaterally or through the General Assembly, would need to be carefully weighed against the costs of placing Russia even further outside the diplomatic tent.
3.5 Military Assistance
The core of the R2P is the responsibility of States to protect their own populations from atrocity crimes. As referenced above, in the implementation framework described by the UN Secretary-General in 2009, ‘pillar two’ of the R2P is the responsibility of the international community to help other States meet their primary responsibility to protect. The Secretary-General has said that pillar two may ‘encompass military assistance’, and that when non-State actors or States commit egregious crimes, ‘collective international military assistance may be the surest way to support the State in meeting its obligations relating to the responsibility to protect’.67
In appealing to the international community for help in protecting its population from Russia’s attacks, the Ukrainian government has prioritised the need for miliary assistance. In an address to nato in March 2022, President Zelenskyy said that Russia had launched more than 1000 missiles into Ukraine in the preceding month, and that Ukraine did ‘not have strong weapons against missiles’. Zelenskyy appealed to nato to ‘[g]ive us all the weapons we need’.68 Ukrainian civil society groups, likewise, have called on the international community to ‘provide immediate defensive miliary aid – including lethal and non-lethal assistance’.69
Many Western States have responded positively to these requests; as of early July, the US alone had provided $6.92 billion in military assistance to Ukraine since the Russian invasion in February.70 But the assistance provided falls far short of what Ukraine says it needs. In April, Zelenskyy launched an online campaign (‘Arm Ukraine Now’), detailing the types and quantities of weapons, military equipment and ammunition required by Ukraine to ‘continue heroically defending the world from Russian aggression’.71 The request is framed as outlining what is required to repel Russian aggression; however, because Russia’s aggression almost indisputably entails the commission of atrocity crimes, it could be equally be framed as – and can be read as – the assistance required by the Ukrainian Government to protect its population from atrocity crimes. Indeed, elsewhere Zelenskyy has appealed for heavy weapons to ‘prevent further Russian atrocities’.72 In the chequered history of the international community’s attempts to respond to genocide, war crimes, ethnic cleansing and crimes against humanity, there are not many other examples of a national government so explicitly and expeditiously articulating what it needs to protect its population from those crimes. In this instance, responding to these requests is arguably the most important thing States can do, short of intervening in the conflict themselves, to honour their responsibility to protect the Ukrainian population from atrocity crimes.
4 Collective Action, Should Peaceful Means be Inadequate
The World Summit Outcome Resolution states that if peaceful means are inadequate and national authorities are manifestly failing to protect their populations from atrocity crimes, the international community is ‘prepared to take collective action, … through the Security Council, in accordance with the Charter, including Chapter vii’.73
In the case of Ukraine there is little question that national authorities are manifestly failing to protect their populations from atrocity crimes – not for want of political will, but because they are unable to stop Russian planes dropping bombs on civilians. And while as discussed above, more could arguably be done to put pressure on Russia or to assist Ukraine to repel the attacks, it could equally be argued that all measures short of collective military intervention have failed – attested to by the almost 5,000 civilians already killed.74 In short, these are arguably circumstances in relation to which the international community has expressed a preparedness to take collective action, through the Security Council, in accordance with the UN Charter, including Chapter vii.
Obviously in the circumstances collective action through the Security Council is not an option, because Russia would veto any proposal for collective action against itself. This begs the question of what the R2P means for the prospect of military action when Security Council authorisation is unavailable.
Before turning to this question, it bears noting that – as alluded to above – the situation in Ukraine is not exactly the situation for which the R2P principle was designed. The R2P principle adopted by the General Assembly in 2005 was based on the report of the Canadian-sponsored International Commission on Intervention and State Sovereignty (iciss), which was established to answer the question: ‘When, if ever, it is appropriate for states to take coercive – and in particular military – action, against another state for the purpose of protecting people at risk in that other state?’75 In Ukraine, the military intervention that is arguably required is not ‘against another state for the purpose of protecting people at risk in that other state’; but rather, intervention aimed at helping a State protect its own population from atrocities being committed by another State. The most significant implication of this distinction is that in the Ukraine scenario, reference to R2P is not required to provide legal cover for miliary intervention, because such intervention may lawfully be provided at the request of the Ukrainian government, pursuant to the right of collective self-defence.76 Thus, the question of whether R2P allows military intervention absent Security Council authorisation is not germane to the assessment of whether such intervention may take place in Ukraine. However, States interested in honouring their commitment to R2P may – and should – still be interested in what the principle calls for in the circumstances. Put otherwise, questions of legality aside, the R2P principle provides a useful framework for responsible and principled decision-making.
Proceeding on that basis, the following discussion considers: first, whether unilateral military intervention is warranted to protect the Ukrainian population, pursuant to the R2P; and second, the possibility of a General Assembly-mandated peacekeeping operation.
4.1 Unilateral Military Intervention
Although the R2P as described by the World Summit Outcome Resolution qualifies collective action as being ‘through the Security Council’, it is possible – and sometimes useful – to reach to a broader conceptualisation of the R2P. The iciss report referred to above proposed six ‘criteria for military intervention for human protection purposes’.77 The first criteria was that Security Council authorisation must be requested. The iciss did not elaborate the circumstances in which intervention might be warranted if such request did not elicit a positive response, but it did say that: ‘if the Security Council fails to discharge its responsibility in conscience-shocking situations …, then it is unrealistic to expect that concerned states will rule out other means and forms of action’.78 Thus, according to this broader conceptualisation of the R2P, in the case of Russia/Ukraine where the Security Council has clearly failed to discharge its responsibility in what is indisputably a conscious-shocking situation, military intervention without Security Council authorization might be warranted.
Positing that lack of consensus in the Security Council is not completely prohibitive of an ‘R2P-intervention’ is not to suggest that such an intervention would meet the other criteria proposed by the iciss. Among other things, the iciss also proposed that the ‘consequences of action [should not] be worse than the consequences of inaction’.79 In the case of Ukraine, the possibly disastrous consequences associated with Western-led military intervention – whether under the auspices of nato or other grouping – have been highlighted elsewhere and need not be revisited here. Suffice to note that there is broad agreement that the consequences of Western-led military intervention in Ukraine, with those consequences possibly involving the use of nuclear weapons, could be worse than the consequences of inaction.80 Thus, even if one accepts the broader conceptualisation of the R2P – not endorsed by the General Assembly but arguably a truer response to the problem of international paralysis that the R2P principle was designed to solve – an intervention of this nature in Ukraine would still most likely not be justified.
4.2 A General Assembly Mandated Peacekeeping Operation
There is another possibility for military intervention in Ukraine, between unilateral intervention and Security Council-authorised intervention, and that is the possibility of a peacekeeping operation mandated by the UN General Assembly. A UN-mandated (‘blue-helmeted’) peacekeeping operation genuinely multinational in nature might be more likely to pass the ‘balance of consequences’ test than a nato or Western-led intervention.
UN peacekeeping operations are usually mandated by the Security Council, but the General Assembly may also mandate such operations, and has on occasions done so.81 The competence of the General Assembly to mandate peacekeeping operations was affirmed by the icj in its Certain Expenses Advisory Opinion in 1960, in which the Court said that the UN Charter ‘empowers the General Assembly, … to organise peacekeeping operations, at the request, or with the consent, of the States concerned’.82
The Secretary-General has recognised the role of peacekeeping operations in the implementation of the R2P. In his 2012 report on the R2P, the Secretary-General said that peacekeeping operations ‘fall under pillar two’ of the R2P (international assistance and capacity building) and ‘are to be distinguished from pillar three tools’ (timely and decisive response)83 – although as discussed above, in the case of Ukraine it is not necessarily helpful to try and situate the required response in this three-pillar framework.
In addition to recognising the role of UN peacekeeping in the implementation of the R2P, the Secretary-General has recognised the role of the General Assembly in recommending collective measures. In 2009, the Secretary-General said that the collective measures referred to in the World Summit Outcome Resolution ‘could be authorised by the Security Council under Articles 41 or 42 of the Charter’ (Chapter vii), or ‘by the General Assembly under the “Uniting for Peace” procedure’.84 The ‘Uniting for Peace’ procedure refers to the process by which the Security Council passes a procedural resolution referring a matter to the General Assembly – the process utilised by the Security Council in February 2022 to refer the matter of Ukraine to the General Assembly.85
UN peacekeeping operations are typically deployed to keep the peace, not to repel the advances of an aggressor State. This is particularly so where the mandating authority is the General Assembly not the Security Council. In its Certain Expenses Advisory Opinion, in explaining the competence of the General Assembly in relation to the UN Emergency Force for the Suez (1956) and the UN Operation in Congo (1960), the icj noted that the operations were not ‘enforcement actions within the compass of Chapter vii of the UN Charter’.86 Thus, the General Assembly’s engagement in, respectively, establishing and modifying the mandates of those operations was not precluded by the stipulation in the UN Charter that the General Assembly should refer any question ‘on which action is necessary’ to the Security Council.87
In practice, though, the line between peacekeeping and peace enforcement is often blurred. In the case of the UN Operation in Congo, for example, once the mission was in place the Congolese Government collapsed, and the General Assembly requested ‘vigorous action’ to restore the independence of the Congo. It has been argued that this ‘put [the UN Operation in Congo] beyond the pale of a peacekeeping force and turned it into an enforcement action’.88 The General Assembly’s intervention in Korea in 1950, similarly, was more in the nature of peace-enforcement than peacekeeping. In the immediate aftermath of the Chinese communist intervention in Korea in 1950, the Security Council established an international force to repel the attack.89 The engagement of the Security Council was momentarily possible because China was represented at the UN by its nationalist government, and the Soviet Union was boycotting the UN over the issue of China’s representation. However, the Soviet delegate subsequently returned to the Security Council, and proceeded to block further action against the communist forces. In response, the General Assembly adopted the Uniting for Peace Resolution, pledging that if the Security Council was unable to exercise its responsibility for international peace and security, the General Assembly would convene and consider recommending collective measures, including the use of armed force.90 The General Assembly then passed another resolution, calling on States to continue assisting the UN’s action in Korea.91 That resolution was understood as permitting the international forces to cross the 38th parallel demarcating communist North Korea from the US-aligned South, thus effectively recommending enforcement action beyond what had initially been mandated by the Security Council.92
There have been some calls for a peacekeeping or peace-enforcement operation in Ukraine. The declaration issued by Ukrainian civil society groups in February, referenced above, called on ‘the international community’ to ‘establish safe zones in Ukraine to provide sanctuary for civilians from both air and ground attacks’.93 In March, the leader of Poland’s ruling party flagged the idea of a ‘peace mission’, to be led by either nato or ‘some wider international structure’, that would ‘give humanitarian aid [and] … at the same time … be protected by appropriate forces’.94 Russia described that proposal as reckless, and said that contact between Russian and nato forces could have ‘consequences that would be hard to repair’.95 Former Canadian diplomats Lloyd Axworthy and Allan Rock have argued more specifically for a General Assembly-mandated peacekeeping mission. Similarly to the Polish proposal, Axworthy and Rock’s suggestion is that the mission would ‘allow civilians to move to safety, and … permit humanitarian and medical aid to flow to areas of Ukraine that need them desperately’.96 For States looking to honour their responsibility to protect the Ukrainian population from atrocity crimes, the idea of a UN-mandated peace mission warrants serious consideration. The ‘balance of consequences’ point would still need to weighed, but it may perhaps be supposed – as Axworthy and Rock argue – that Putin would be less inclined to enter into direct conflict with a UN-mandated operation, as compared to a nato or Western-led intervention, because an attack on such a mission would be an attack on ‘the international community at large’, which even Putin may consider foolhardy.97
5 Conclusion: the Responsibility to Protect beyond Ukraine
It is the nature of the R2P, the obligation to cooperate to end serious breaches of peremptory norms of international law and the obligation to prevent genocide that specific courses of action are not prescribed. The icj has said in relation to the obligation to prevent genocide that what is required is an assessment ‘in concreto’,98 and the same goes for the R2P and the obligation to cooperate to end serious breaches of peremptory norms. What can be said in the case of all these obligations – legal and political – is that States are required to use all means reasonably available to them to halt the commission of atrocity crimes. Different things will be required of different States, depending on available means and capacity to influence. For all States, though, the obligations require bold, creative, strategic, out-of-the-box thinking.
There are two final points that bear noting, not specifically pertaining to the situation in Ukraine, but highlighted by it. The first relates to the significance of the nuclear threat. One of the things highlighted by the situation in Ukraine is that so long as nuclear weapons exist in the world, responding to atrocity crimes when the perpetrator is a nuclear power or allied with a nuclear power will be extremely difficult. The crisis in Ukraine has prompted renewed calls for Security Council reform, specifically in relation to the power of veto; but much of this discussion arguably misses the point that it is not so much Russia’s veto in the Security Council that is the problem, but the threat of nuclear war if things go wrong. If it were not for the nuclear threat, nato or other coalition-of-the-willing may already have intervened in Ukraine, possibly bringing the atrocities to an end. The Treaty on the Prohibition of Nuclear Weapons entered into force in January 2021. What is clear from the situation in Ukraine is that ratifying or acceding to this Treaty, and pressuring others to do so, is one of the most important things States can do to enable future responses to atrocity crimes, beyond Ukraine.
The second point that warrants emphasis by way of conclusion is that it is not just Ukrainians that the international community has a responsibility to protect. In Syria, Myanmar, Afghanistan, China, Yemen, Palestine, Ethiopia, the Philippines and possibly elsewhere, there is credible and abundantly available public evidence that war crimes and/or crimes against humanity are being committed. The response of the international community to most of these situations pales in comparison to the response mustered in just a matter of months for Ukraine. And yet in all these situations, the commitment to protect populations from atrocity crimes requires some combination of the measures discussed in relation to Ukraine, including sanctions targeted to inflict the greatest possible pain on decision-makers, diplomacy, fact-finding and legal proceedings, and consideration given to the deployment of UN peacekeepers. These measures are at once the collective responsibility of the international community pursuant to the responsibility to protect, and the individual responsibility of States, pursuant to the Genocide Convention and/or the obligation to cooperate to end serious breaches of peremptory norms of international law.
Biographical Note
Rebecca Barber is a senior research fellow at the Asia Pacific Centre for the Responsibility to Protect and PhD candidate at tc Beirne School of Law, University of Queensland.
This article is current as of early July 2022. As this article describes a rapidly changing situation, the events described – and the responses of States – may have evolved by the time of publication.
See: Laurence Freedman, ‘Why War Fails: Russia’s Invasion of Ukraine and the Limits of Military Power’, Foreign Affairs, vol. 101, no. 4, 2022, pp. 10-20. Seth Jones, ‘Russia’s Ill-Fated Invasion of Ukraine: Lessons in Modern Warfare’ (Centre for Strategic and International Studies, 1 June 2022) <https://www.csis.org/analysis/russias-ill-fated-invasion-ukraine-lessons-modern-warfare>.
UN Office of the High Commissioner of Human Rights (ohchr), ‘Ukraine: Civilian Casualty Update’ (12 July 2022) <https://www.ohchr.org/en/news/2022/07/ukraine-civilian-casualty-update-12-july-2022>.
See ohchr, ‘Opening Statement: Press Conference by the Commission of Inquiry on Ukraine on the Conclusion of its first visit to Ukraine’ (15 June 2022) <https://www.ohchr.org/en/statements/2022/06/opening-statement-press-conference-commission-inquiry-ukraine-conclusion-its>.
unga Res 60/1 (2005) paras. 138–139.
See Global Centre for the Responsibility to Protect, ‘UN Security Council Resolutions and Presidential Statements Referencing R2P’ (June 2022) and ‘UN General Assembly Resolutions Referencing R2P’ (April 2022), both available at: <https://www.globalr2p.org/resources/>.
UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General, UN Doc A/63/677, 12 January 2009.
ibid.
UN Secretary-General, Responsibility to Protect: Timely and Decisive Response, UN Doc A/66/874-S/2012/578, 25 July 2012, p. 4.
ibid.
See, e.g., UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General and UN Secretary-General, Responsibility to Protect: Timely and Decisive Response, both focusing primarily on the responsibility of the international community, and particularly the UN.
unga Res 60/1 (2005) para. 139.
UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General, p. 35; UN Secretary-General, Responsibility to Protect: Timely and Decisive Response, p. 11.
Convention on the Prevention and Punishment of the Crime of Genocide (opened for signature 9 December 1948, entered into force 12 January 1951) 78 unts 277, Art. I.
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] icj Rep 43 (‘Bosnian Genocide Case’) para 430.
ibid.
Alexey Kovalev, ‘Russia’s Ukraine Propaganda has Turned Fully Genocidal’ (Foreign Policy, 9 April 2022) <https://foreignpolicy.com/2022/04/09/russia-putin-propaganda-ukraine-war-crimes-atrocities/>.
See discussion in Rebecca Barber, ‘Cooperating through the General Assembly to end Serious Breaches of Peremptory Norms’, International and Comparative Law Quarterly, vol. 71., no. 1, 2022, pp. 1–35.
International Law Commission (ilc), ‘Report of the International Law Commission on the Work of its 71st Session’ (29 April–7 June and 8 July–9 August 2019) UN Doc A/74/10, p. 145. These Conclusions were adopted on first readings in 2019 and have not as yet been finalised.
ilc, ‘Report of the International Law Commission on the Work of its 53rd Session (23 April–1 June and 2 July–10 August 2001) UN Doc A/56/10, p. 114.
ilc, ‘Report on the 71st Session’, p. 194 (emphasis added).
ilc, ‘Report on the 53rd Session’, p. 114.
UN Secretary-General, Responsibility to Protect: Timely and Decisive Response, pp. 7–8.
unga Res 60/1 (2005) para. 138.
ilc, ‘Report on the 53rd Session’, p. 114.
ilc, ‘Report on the 71st Session’, p. 195.
Richard Humphreys and Lauma Paegļkalna, ‘Combat Without Warfighting: Non-Belligerent Actors and the Russian Invasion of Ukraine’ (March 2022) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4048994>.
See ohchr, ‘Ukraine: Joint Statement on Russia’s Invasion and Importance of Freedom of Expression and Information’ (4 May 2022) <https://www.ohchr.org/en/statements-and-speeches/2022/05/ukraine-joint-statement-russias-invasion-and-importance-freedom>.
See ibid; also Stephanie Diepeveen, Olena Borodyna and Theo Tindall, ‘A War on Many Fronts: Disinformation around the Russia-Ukraine War’ (Overseas Development Institute, 11 March 2022) <https://odi.org/en/insights/a-war-on-many-fronts-disinformation-around-the-russia-ukraine-war/>.
ohchr, ‘Ukraine: Joint Statement on Russia’s Invasion and Importance of Freedom of Expression’.
Dina Smeltz and Lily Wojtowicz, ‘Russians Think they’re engaged in a Heroic Struggle with the West’ (Washington Post, 14 April 2022) <https://www.washingtonpost.com/politics/2022/04/14/russia-public-opinion-putin-ukraine/>.
Mike Eckel, ‘Polls Show Russians Support Putin and the War on Ukraine. Really?’ (Radio Free Europe / Radio Liberty, 7 April 2022) <https://www.rferl.org/a/russia-support-ukraine-war-polls-putin/31791423.html>.
ohchr, ‘Ukraine: Joint Statement on Russia’s Invasion and Importance of Freedom of Expression’.
Humphreys and Paegļkalna, ‘Combat Without Warfighting’, pp. 6–7.
See Dispute Relating to Allegations of Genocide (Ukraine v. Russian Federation) (application instituting proceedings) (22 February 2022) <https://www.icj-cij.org/public/files/case-related/182/182-20220227-APP-01-00-EN.pdf>.
icc, ‘Statement of icc Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation’ (2 March 2022) <https://www.icc-cpi.int/news/statement-icc-prosecutor-karim-aa-khan-qc-situation-ukraine-receipt-referrals-39-states>.
UN hrc, ‘Situation of Human Rights in Ukraine Stemming from the Russian Aggression’ (7 March 2022) UN Doc a/hrc/res/49/1.
European Union Agency for Criminal Justice Cooperation, ‘Eurojust Supports Joint Investigation Team into Alleged Core International Crimes in Ukraine’ (28 March 2022) <https://www.eurojust.europa.eu/news/eurojust-supports-joint-investigation-team-alleged-core-international-crimes-ukraine>.
See, e.g., ‘Sweden Launches Investigation into Ukraine War Crimes’ (5 April 2022) <https://www.thelocal.se/20220405/sweden-launches-investigation-into-ukraine-war-crimes/>.
See ‘Statement Calling for the Creation of a Special Tribunal for the Punishment of the Crime of Aggression against Ukraine’ (March 2022) <https://gordonandsarahbrown.com/wp-content/uploads/2022/03/Combined-Statement-and-Declaration.pdf>.
See, e.g., discussion in Lauren Baillie, ‘Ukraine: Justice for War Crimes Must Begin with Evidence’ (US Institute for Peace, 7 April 2022) <https://www.usip.org/publications/2022/04/ukraine-justice-war-crimes-must-begin-evidence>; Yvonne Breitwieser-Faria and Lauren Sanders, ‘Atrocity Crimes in Ukraine: What can Australia do?’ (4 May 2022) <https://ilareporter.org.au/2022/05/atrocity-crimes-in-ukraine-what-can-australia-do/>.
James Cusick, ‘Ukraine’s Human Rights and Civil Society Leaders Appeal to World for Urgent Help’ (28 February 2022) <https://www.opendemocracy.net/en/odr/ukraine-russia-kyiv-declaration-human-rights-civil-society-leaders-appeal-urgent-help/>.
UN Secretary-General, Responsibility to Protect: Timely and Decisive Response, p. 9.
See discussion in Rebecca Barber, ‘An Exploration of the General Assembly’s Troubled Relationship with Unilateral Sanctions’, International and Comparative Law Quarterly, vol. 70, no. 2, 2021, pp. 349–355.
e.g., unga Res 41/35 (1986) (South Africa).
e.g., unga Res 1807 (xvii) (1962) (Portuguese Territories).
e.g., unga Res es-8/2 (1981) (South Africa).
e.g., unga Res 2107 (xx) (1965) (Portuguese Territories).
e.g., ibid.
e.g., ibid.
The New York Times, ‘How the World is Seeking to put Pressure on Russia’ (5 July 2022, The New York Times) <https://www.nytimes.com/article/russia-us-ukraine-sanctions.html>.
Gerard DiPippo, ‘Strangling the Bear? The Sanctions on Russia after Four Months’ (Centre for Strategic and International Studies, 22 June 2022) <https://www.csis.org/analysis/strangling-bear-sanctions-russia-after-four-months>.
Richard Humphreys and Lauma Paegkalna, ‘Collective Responsibility: Widening the Target for Sanctions arising from the Russian Invasion of Ukraine’ (23 March 2022) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4060962>.
ibid.
See discussion in Barber, ‘An Exploration of the General Assembly’s Troubled Relationship with Unilateral Sanctions’, pp. 365–368.
See discussion in Richard Hooker, ‘Climbing the Ladder: How the West can Manage Escalation in Ukraine and Beyond’ (Atlantic Council, 21 April 2022) https://www.atlanticcouncil.org/in-depth-research-reports/report/managing-escalation-in-ukraine/; also Humphreys and Paegkalna, ‘Collective Responsibility’.
unga Res 36/172A (1981).
unga Res 2107 (xx) (1965).
unga Res es-9/1 (1982).
See Patrick Wintour, ‘Spy Games: Expulsion of Diplomats Shines Light on Russian Espionage’ (The Guardian, 15 April 2022) <https://www.theguardian.com/world/2022/apr/15/spy-russian-diplomats-europe-espionage-ukraine>; Sammy Westfall and Maite Fernández Simon, ‘Which Countries have Expelled Russian Diplomats over Ukraine?’ (The Washington Post, 25 April 2022) <https://www.washingtonpost.com/world/2022/03/30/diplomat-expulsion-russian-embassy-expel/>.
Aljazeera, ‘EU Countries Expel Dozens of Russian Diplomats’ (Aljazeera, 5 April 2022) <https://www.aljazeera.com/news/2022/4/5/denmark-italy-expel-dozens-of-russian-diplomats>.
Aljazeera, ‘US Expelling Russian Diplomats from UN Mission in New York’ (Aljazeera, 28 February 2022) <https://www.aljazeera.com/news/2022/2/28/us-expelling-russian-diplomats-from-un-mission-in-new-york>.
Council of Europe, ‘Resolution cm/Res (2022) 2 on the Cessation of the Membership of the Russian Federation to the Council of Europe’ (18 March 2022).
European Council, ‘EU Restrictive Measures against Russia over Ukraine (since 2014)’ (22 April 2022) <https://www.consilium.europa.eu/en/policies/sanctions/restrictive-measures-against-russia-over-ukraine/>.
Reuters, ‘Latvia and Estonia Close Russian Consulates Expel Staff’ (Reuters, 5 April 2022) <https://www.reuters.com/world/europe/latvia-closes-two-russian-consulates-expels-staff-2022-04-05/>.
European Council, ‘EU Restrictive Measures’.
See Rebeca Barber, ‘Could Russia be Suspended from the United Nations’ (ejil:Talk!, 1 March 2022) <https://www.ejiltalk.org/could-russia-be-suspended-from-the-united-nations/>.
UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General, p. 18.
Ruslan Rehimov, ‘Ukraine tells nato Summit Request for Military Assistance has Gone Unanswered’ (Anadolu Agency, 24 March 2022) <https://www.aa.com.tr/en/russia-ukraine-war/ukraine-tells-nato-summit-request-for-military-assistance-has-gone-unanswered/2544870>.
Cusick, ‘Ukraine’s Human Rights and Civil Society Leaders Appeal to World’.
Antony Blinken, ‘$820 Million in New U.S. Military Assistance for Ukraine’ (Press Statement, US Department of State, 1 July 2022) <https://www.state.gov/820-million-in-new-u-s-military-assistance-for-ukraine>.
Ukraine Ministry of Foreign Affairs, ‘Arm Ukraine Now’ (March 2022) <https://war.ukraine.ua/arm-ukraine-now/>.
Jeff Seldin, ‘US Readying More Military Aid as Ukraine Appeals for Support’ (Voice of America, 13 April 2022) <https://www.voanews.com/a/us-readying-more-military-aid-as-ukraine-appeals-for-support-/6527367.html>.
unga Res 60/1 (2005) para. 139.
ohchr, ‘Ukraine: Civilian Casualty Update’.
International Commission on Intervention and State Sovereignty (iciss), ‘The Responsibility to Protect’ (International Development Research Centre, 2001) <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/18432/IDL-18432.pdf?sequence=6&isAllowed=y>.
Article 51 of the UN Charter provides that ‘nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations’: Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 unts xvi.
iciss, ‘The Responsibility to Protect’, p. 32.
ibid., p. 55.
ibid., p. xii.
See, e.g., Christopher Chivvis, ‘I’ve Studied the Possible Trajectories of the Russia-Ukraine War. None are Good’ (The Guardian, 8 March 2022) <https://www.theguardian.com/commentisfree/2022/mar/08/russia-ukraine-war-possible-trajectories>.
See Rebecca Barber, ‘A Survey of the General Assembly’s Competence in Matters of International Peace and Security: In Law and Practice’, Journal on the Use of Force in International Law, vol. 8, no. 1, 2021, pp. 145–147.
Certain Expenses of the United Nations [1962] icj Rep 151, p. 164.
UN Secretary-General, Implementing the Responsibility to Protect: Timely and Decisive Response, 2012, p. 5.
UN Secretary-General, Implementing the Responsibility to Protect: Report of the Secretary-General, 2009, p. 25.
unsc, ‘Security Council Calls for Emergency Session of General Assembly on Ukraine Crisis’ (28 February 2022) Press Release sc/14809.
Certain Expenses, p. 166 (emphasis in original).
ibid., pp. 165–166.
Nigel White, The United Nations and the Maintenance of International Peace and Security (Manchester: Manchester University Press, 1990), p. 199.
unsc Res 84 (1950).
unga Res 377(V) (1950).
unga Res 498(V) (1951).
See discussion in Nigel White, ‘The Relationship between the UN Security Council and General Assembly in Matters of International Peace and Security’ in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford: Oxford University Press, 2015), pp. 293–313, 311.
Cusick, ‘Ukraine’s Human Rights and Civil Society Leaders Appeal to World’.
Aleksandra Krzystoszek, Alexandra Brzozowski and Aneta Zachová, ‘“Real” European Values Defended by Ukrainians, EU Leaders say in Kyiv’ (euractiv, 16 March 2022) <https://www.euractiv.com/section/politics/short_news/real-european-values-defended-by-ukrainians-eu-leaders-say-in-kyiv/>.
Reuters, ‘Russia says Sending International Peacekeepers to Ukraine would be “Very Reckless”’ (Reuters, 23 March 2022) <https://www.reuters.com/world/moscow-says-sending-peacekeeping-troops-ukraine-may-lead-nato-russia-2022-03-23/>.
Lloyd Axworthy and Allan Rock, ‘The United Nations can Use its Blue Helmets to Save Lives in Ukraine’ (The Globe and Mail, 22 March 2022) <https://www.theglobeandmail.com/opinion/article-the-united-nations-can-use-its-blue-helmets-to-save-lives-in-ukraine/>.
ibid.
Bosnian Genocide Case, para. 430.