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approved by the Security Council, therefore it seems that it should be considered as
legal.
However, the operations on the ground have to correspond with the wording
of the resolution. In other words, they cannot exceed the mandate given. According
to the resolution, use of force was approved for the purposes of protecting civilians
and civilian populated areas, and enforcing the no-fly zone. But in reality, several
operations were aimed at overthrowing Gaddafi and supporting the rebels. With
regard to the resolution, such operations would have to be regarded as illegal.
The following question would be whether the exceeding actions could be reasoned
by an argument of humanitarian intervention. If so, these actions would not constitute
a manifest violation of the UN Charter and therefore would not amount to a crime
of aggression. If not, the character, gravity and scale of these actions would have to
be further explored.
6.8 Ukraine 2014
In late 2013 the decision of the pro-Russian Ukrainian President Viktor
Yanukovych not to sign an association agreement with the European Union triggered
large demonstrations in Ukraine’s capital. Over 100 demonstrators were killed in
clashes with the police. Later in February 2014 the pro-Russian government was
overthrown in an unconstitutional way and a new interim government was formed.
At the end of the same month, masked Russian troops without insignias entered
Crimea and gained control over strategic sites, including the regional parliament.
In March 2014 Crimea declared independence under new control. Afterwards, a
referendum was held in Crimea without Ukrainian approval in which a decision was
made to join the Russian Federation. Later that month Crimea was
de facto
annexed
by Russia.
After these events, pro-Russian demonstrations in the Donetsk and Luhansk regions
within Ukraine resulted in armed conflict between the separatists and Ukrainian forces.
In the half of 2015, there is strong evidence confirming that Russian forces are involved
in the conflict as well.
If we imagine that such events occurred after 2017 and the International Criminal
Court would have jurisdiction to investigate the alleged crime of aggression, the
Court would be likely to develop the following considerations. First, it is necessary to
point out that no reasonable arguments concerning self-defence or Security Council
approval can be developed in favour of Russian intervention on Ukrainian territory.
Second, with regard to Crimea, Russian forces crossed the borders and took
control of the region. The following referendum on secession was not approved by
the territorial sovereign, therefore it was illegal. Concerning the character, gravity and
scale, it is likely that the Court would conclude that such an intervention constitutes