Sasha Borissenko: The law protecting NZ if Vladimir Putin escalates Russian violence


As the situation escalates in Ukraine, there have been fears Vladimir Putin may go rogue by setting his sights on the Pacific. While I would argue we’re possibly too insignificant and far away to be on his radar, let’s nevertheless look at the international framework that’s designed to ensure this never happens.

On February 16, Russia’s Parliament adopted a resolution requesting President Vladimir Putin recognise as independent states two areas in Ukraine held by Russia-backed armed groups.

Five days later Putin submitted two decrees to Parliament for ratification. He issued orders to Russia’s armed forces to carry out “peacekeeping” in the self-proclaimed “Donetsk People’s Republic” and “Luhansk People’s Republic”. The Federation Council – the upper chamber of Russia’s Parliament – approved Putin’s request.

On February 24, Putin declared war against Ukraine, and missile and shelling attacks began against multiple Ukrainian cities. The Special Monitoring Mission of the Organisation for Security and Cooperation in Europe has reported significant daily increases in violations of a 2014 ceasefire agreement.

A bit of context

Russia’s invasion of Ukraine violates Article 2(4) of the UN Charter, which prohibits the use of force against the territorial integrity of another state. The charter’s only clear exception to prohibiting the use of force is self-defence if an armed attack occurs against a country. But these interventions are limited to evacuating citizens, not overthrowing governments.

UN Secretary-General António Guterres called on Russia to stop its fast-moving invasion of Ukraine on February 24.

“The use of force by one country against another is the repudiation of the principles that every country committed to uphold. This applies to the present military offensive. It is wrong. It is against the charter. It is unacceptable. But it is not irreversible,” Guterres told reporters at UN headquarters in New York.

Even the New Zealand Law Society has come out swinging saying it stands in solidarity with the people of Ukraine, the Ukrainian National Bar Association, and Ukrainian Bar Association.

“Russia’s actions are a violation of one of the most fundamental rules of international law, and a direct threat to the rule of law,” Law Society president Tiana Epati said.

International legal framework

Putting aside Putin’s illegitimate occupation, the rules of war, or international humanitarian law are a set of rules that set out what can and can’t be done during a conflict.

The rules are universal and are made up of treaties (the Geneva Conventions and their Additional Protocols) and customary international law. All 196 states party to the UN have ratified the Geneva Conventions.

The rules aim to maintain some level of humanity in armed conflicts. The rules regulate how wars are fought balancing two aspects: weakening the enemy and limiting suffering.

Rules include: protecting civilians, medical personnel and aid workers; protecting injured soldiers or prisoners and allowing for the sick or wounded to be cared for; limiting the weapons and tactics used to avoid unnecessary suffering; and allowing medical workers, medical vehicles and hospitals to not be attacked.

Rape and other forms of sexual violence are expressly forbidden as well as torture. Detainees must receive food and water and be allowed to communicate with their loved ones.

Historic monuments, works of art, archaeological sites and any cultural property are protected unless required by imperative military necessity. Parties are prohibited from seizing, destroying or wilfully damaging cultural property and must ensure there’s no theft or vandalism. Attacks on them are considered an attack on history, dignity and humanity.

Ultimately the rules recognise the right of civilians to be protected from the dangers of war and every possible care must be taken to avoid harming them or their houses, or destroying amenities that ensure they survive. Targeting civilians is a war crime.


War crimes can be investigated and prosecuted by any state or by an international court.

The International Criminal Court is a permanent international court with a mandate to investigate, charge and put on trial people suspected of crimes against humanity, genocide and war crimes committed after July 2002.

It can only exercise jurisdiction if the crimes occurred in the territory of a country that’s party to the International Criminal Court treaty; the person accused is a citizen of a country that’s party to the treaty; if the country that’s not party to the treaty accepts the court’s authority by submitting a formal declaration to the court; or the UN Security Council refers the situation to the court prosecutor.

While Russia and Ukraine aren’t members of the International Criminal Court, Ukraine accepted the court’s jurisdiction over alleged crimes committed on its territory since 2013. In 2020 the court office and prosecutor said the criteria had been met to open a formal investigation but it hasn’t yet opened a formal investigation.

The International Court of Justice also decides disputes between countries, including alleged violations of the UN Charter. But only 73 countries out of 195 have accepted the court’s jurisdiction.

Sanctions sanctions sanctions

Where does that leave us? The UN Security Council or individual countries may impose economic or diplomatic sanctions if need be.

A slew of economic sanctions have been imposed by the UK, EU, US, and even New Zealand – as per the Russia Sanctions Act that came into force on March 12. These include banning imports from Russia, banning travel, and freezing or seizing assets of individuals said to be associated with the Russian Government.

Alexander Abramov owns a fifth of, and was the former chairman of steel multinational Evraz, for example. He owns assets in New Zealand including a luxury lodge in Northland’s Helena Bay. He’s said to be worth US$6 billion and owns the superyacht Titan.

He was not on the list of individuals named by the New Zealand Government in its Russian invasion travel ban. The Government hasn’t cited its reasons but for now there’s no causal link between the oligarch and the Russian Government. Connections to the Russian Government are nothing more than speculation at this point.

Meanwhile, Russia has banned exports of more than 200 products until the end of 2022 and it’s more than doubled its key interest rate to try to stop the decline of the rouble.

More concerning than Abramov’s potential connections to Russia is Putin himself. He’s said the sanctions are a form of economic warfare against which he may retaliate.

Let’s hope in this case the international legal framework can act as a deterrent, but so far this hasn’t been the case.

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