(by Giuseppe Paccione) Since the beginning of the conflict in Ukraine, caused by the Russian invasion with the aggression towards a sovereign and independent state, China has tried in every way to stay out of the Russian-Ukrainian war struggle. This is demonstrated by the abstention of the Chinese delegation from adopting a couple of draft resolutions (the S / 2022 / 155 , S / RES / 2623/2022) discussed in the Security Council, which did not pass by veto Russian, but also to the resolution (A / ES-11 / L.1) adopted by the General Assembly of the United Nations. Not only that, but Beijing has not joined the sanctions against the Russian Federation, providing it with an anchor of economic support. Although everything could change along with the legal risks, China could violate international law, thus opening up to sanctions and countermeasures.
Russia, in order not to risk being isolated from the international community, turned to the Chinese government, asking for a military support to be able to continue the coercive war action against Ukraine. Obviously, the Chinese response to the Russian invitation was assertive; however, should Beijing follow this path, it could incur the responsibility of supporting the jus ad bellum illegitimate in favor of Russia as a belligerent country and violations of international law of armed conflicts during hostilities.
Clearly, Russia's manifestly illicit conduct is twofold. First, the hostile occupation by Russian military troops is being zipped within the framework of the violation of the United Nations Charter which strongly outlines the use of warfare against the territorial integrity or political independence of any state. The International Court of Justice itself considered the Russian opinions not entirely founded, according to which Moscow allegedly acted with the aim of preventing genocide and ordered the Russian authorities, pending the decision on the case, of suspend immediately military operations on the territory of Ukraine. The judges of the international justice body have ruled that the order issued in this regard has a binding effect, which in fact indicates the imposition of international legal obligations on the Russian Federation.
Russia is also held responsible for committing violations of the provisions of international law of armed conflict with indiscriminate bombings that have resulted in the death of many civilians, destruction of hospitals and, not only that, it involved the use of cluster ammunition over populous city areas. Russian behaviors that could be framed within the framework of war crimes. Add also the action of the Prosecutor of the International Criminal Court who issued laws arrest warrants against several Russian-supported official bodies, which were accused of war crimes in the period of Russo-Georgian conflict in 2008.
Returning to China's role in the war conflict between Russia and Ukraine, it should immediately be noted that, should it provide military assistance to Russia, it would be overwhelmed. de jure from its responsibility to assist the Russians by violating international law. There are three triggers related to the legal responsibility that China itself would not be able to dodge. First, it should be remembered that in the Draft articles on the responsibility of the state the prohibition of a State from helping or assisting other States contrary to general international law is established, if the State is aware of the circumstances of the internationally illicit act, a rule that makes it the primary norm of customary international law. This requirement could be taken into account in the event that the Chinese authorities provide weapons or other types of military assistance to the Russians for war operations on Ukrainian territory.
The international community condemned the Russian invasion of Ukraine as a clear violation of the UN Charter through the adoption of the resolution by the United Nations General Assembly which denounced the aggressive act occurred with the incursion into Ukrainian territory. Unfortunately, the Russian authorities have not only disregarded the order of the judges of the International Court of Justice to silence the weapons immediately on Ukrainian soil, but there is a significant range of tangible evidence of Russian behavior of contempt towards Ukrainians and women. civil infrastructure.
Although the Russian conduct is so public and unequivocally illegitimate, the decision by Beijing to support militarily would fall within the knowledge of the circumstances of the internationally wrongful act. The same International Law Commission provides some examples to support the standard legal, including that according to which the UN General Assembly invites each State to stop the supply of weapons and military assistance to States that find themselves carrying out serious violations of human rights, as happened in 1984, where the government Iranian, for example, in Iraqi-Iranian war conflict, contested the UK government for providing financial and military aid to the Iraqi government and that it was facilitating the aggression of Iraqi military troops into Iranian territory.
It should also be remembered that each State is prohibited from providing military assistance to the State that is attacking another State, violating the mandatory rules of jus cogens that banish the tool of aggression. Hence the states they must cooperate to put an end, through legitimate means, to any serious violation, but also to the duty not to recognize as legitimate the situation created by a serious violation, to refuse to provide help or assistance. Ergo, states must do so do not lend help or assistance where primary rules are claimed and their importance ensures that each state must be more careful when cooperating with other states. An example can be taken from the ruling of the International Court of Justice relating to legal consequences for the States of the continued presence of South Africa in Namibia, which not only has explained the norm of non-recognition, but also the obligation of the member states of the United Nations to refrain from providing any support or any form of assistance to South Africa with regard to its occupation of the territory of Namibia. Now, the procurement surrounded by military assistance from the Beijing authorities to Russian operations on Ukrainian territory would go against the basic obligations mentioned above.
Finally, States must show a commitment to respect and ensure compliance with IV Geneva Conventions in all circumstances, in the sense that not only is a negative constraint imposed on each state to avoid encouragement to violations of the rules of international law of armed conflictbut also a positive obligation of third parties with international personality for States to ensure that other States and non-state actors respect the binding provisions of international humanitarian law or armed conflict. For the purposes of the current Russian-Ukrainian crisis, through the negative link, the Contracting States can neither encourage, help or assist in favoring the violations of the Conventions by the States involved in a war conflict.
Chinese intervention in procuring war tools for Russia, in the midst of an ongoing war, in which evidence of violation of international law of armed conflict is tangible, would risk reducing its binding commitment not to encourage violations of the international humanitarian law. Beijing may be tempted to come forward through military assistance to Russian troops in the conflict against Ukraine and which would see it directly involved in Russia's illegitimate war and violations of the provisions of international law of armed conflict. This, in turn, could lead to the activation of the sanction mechanism and further countermeasures against the Beijing authorities, so the wise way for China would be not to compromise with Russia in the supply of weapons, remaining outside and under the umbrella of the rules of international law.
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