Source: CNN

Ayesha Malik

Russia’s invasion of Ukraine has now lasted for over 100 days. The war is not going particularly well for either side; Russia still only controls 20 percent of Ukrainian territory while Ukraine has been admonishing the West for not providing sufficient amounts of aid. Russia’s actions have correctly been qualified as an act of aggression and the international community has been quick in its censure of the state through sanctions and the removal of foreign investment. Simultaneously , the United Nations has largely been unable to act, owing mostly to the veto powers of the Permanent 5 members, of which Russia is one. As always, however, Russia has been the recipient of strongly-worded condemnations. Therefore, it is important to analyze the war through the law applicable to the use of force, Russia’s justifications for its attack, and the frailty and paralysis of international fora in dealing with such an act of aggression.

Russia’s Use of Force

The use of force is prohibited under Article 2(4) of the United Nations Charter. There are two exceptions to this prohibition: the use of force in self-defense and collective security operations undertaken by the Security Council. A third exception, that of humanitarian intervention, has been  touted by Western states but has received little traction internationally and therefore remains illegal. Moreover, any force used in self-defense must also comply with the requirements of necessity and proportionality. Any unilateral use of force which does not come within these exceptions is an act of aggression under international law.

Russia’s invasion of Ukraine is the largest military offensive in Europe since the Second World War and has wreaked untold damage on civilians and infrastructure with tens of millions fleeing from their homes. Its actions are a prima facie breach of Article 2(4) and have been condemned as an act of aggression, but Russia has attempted to justify its military operation in Ukraine under international law. Russian President, Vladimir Putin, in a speech on the eve of military action based the use of force on four legal arguments:

  1. Anticipatory self-defense from a threat emanating from Ukraine
  2. Collective self-defense of the Donetsk and Luhansk Republics
  3. Protection of nationals
  4. Humanitarian intervention to stop a ‘genocide’

Anticipatory Self-Defence from a Threat Emanating from Ukraine

Under Article 51 of the UN Charter, a State may use force in self-defense ‘if an armed attack occurs’. However, a State is not expected to act like a sitting duck if it knows an imminent armed attack is on its way. It was held in Caroline that it may use force in self-defense anticipatorily if the need to use force was “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.” However, there is no evidence that there was such an imminent armed attack from Ukraine. While Russia has said much about the existential threat it faces by NATO’s eastward expansion and its policy of encirclement, which is not without merit, the issue remains the requirement of ‘imminence’. The lack of an imminent threat and the reliance on one which exists vaguely in the future, make self-defense preventive and illegal. In fact, it seems Russia recognised this ground was rather flimsy. Ukraine has given evidence that Russia was planning a ‘false flag’ operation to create a basis for military intervention, in which its own soldiers would be killed in an attack that it would blame Ukraine for. As it stands, there was no imminent threat to which Russia was reacting which would justify its use of force.

Collective Self-Defense of the Donetsk and Luhansk Republics

Russia recognised the two separatist regions of Donetsk and Luhansk as independent states and signed agreements with them a few days before the invasion in which they requested Russia’s military assistance. It then argued that it was acting in collective self-defense of these states against Ukraine. However, just because Russia has recognised them as such does not confer statehood on these entities. The legal criterion for statehood as per the Montevideo Convention requires a permanent population, a defined territory, a government, and the capacity to conduct international relations. The last criterion requires that other states recognise the entity as a state. These Republics are clearly not able to conduct international relations given the lack of recognition by all states but Russia. There is no right for a state to secede from its parent state under international law. However, the law does recognise that where the requirements for internal self-determination are not met, i.e. when a people do not have a right to practice their culture, speak their language or participate in their community’s cultural and political life, this could lead to a right to ‘external’ self-determination, in which secession would be an option. However, that does not seem to be the case in these two Republics, moreover, Russia has itself argued before the ICJ in the Kosovo Advisory Opinion that remedial secession is “limited to truly extreme circumstances, such as an outright armed attack by the parent State, threatening the very existence of the people in question”. Therefore, it does not seem that the right to external self-determination can accord statehood to these Republics.

Recognition is also unlawful if granted during hostilities as it becomes a denial of the sovereignty of the parent state. Premature recognition in this form is an unlawful intervention into another state’s affairs. The UN General Assembly also passed a resolution stating that Russia’s recognition was a ‘violation of the territorial integrity and sovereignty of Ukraine and inconsistent with the principles of the Charter of the United Nations.’ Moreover, the argument that Russia is acting in collective self-defense of these Republics would only be tenable if they were states and Ukraine had subjected them to an armed attack. Further, even if these entities were states and Russia was acting in their defence, its goal of demilitarising and denazifying Ukraine would not comply with criteria of necessity and proportionality.

Protection of Nationals

Russia has also relied on doctrines which favour a state protecting its own nationals, as it has done previously in Georgia in 2008 and in Crimea in 2014. This doctrine allows for a state to undertake minimally invasive special operations to rescue its nationals from imminent threats abroad. Israel relied on this doctrine when it conducted an operation to rescue Israelis which were held hostage in Entebbe, Uganda in 1976. However, the lawfulness of such operations is not commonly accepted and even if it were, there would need to be evidence of an imminent threat to Russians in Ukraine. While there is proof of serious and systematic human rights violations against people in the separatist Republics by the authorities, these are not of such a scale to justify such a use of force against Ukraine. Moreover, there was mass distribution of Russian passports to individuals in the Donbas leading up to the invasion to create a population of nationals within Ukraine. Therefore, the legal status of these nationals is questionable and may itself be an act of intervention in another state’s affairs.

Humanitarian intervention to stop a ‘genocide’

Putin also used humanitarian language to defend his actions. However, it was later clarified in Russia’s submissions to the International Court of Justice that the country was not relying on an argument of humanitarian intervention, focusing instead on individual and collective self-defence. Even if Russia did attempt to base its conduct on the noble aim of preventing a genocide in Ukraine, this would not be a valid exception to the prohibition on the use of force, and therefore remains illegal.

International Fora

International fora have proved ineffective in dealing with this bevy of illegal actions, not least because of their systemic inadequacies. Russia, for instance, vetoed a Security Council resolution that demanded it stop its attack and withdraw its troops. 11 of the Council’s 15 members voted in favour, with China, India, and the United Arab Emirates abstaining. The Uniting for Peace mechanism was invoked, for the first time in around sixty years, and the issue was sent to the General Assembly which held an emergency special session and a majority of states condemned the intervention. It is unlikely that anything tangible will be done by the UN, it may launch a Human Rights Commission of Inquiry to investigate breaches of human rights and international humanitarian law but beyond that its powers are limited.

What this dispute indicates is that the veto system is irreconcilable with a rules-based order as it gives powerful states a get-out-of-jail-free card that never runs out. These states never have to face the legal consequences for their actions. However, the world order has changed, mainly due to decolonisation, and these newly-formed global South states should demand greater power in the international framework. We must look at options for reforming this system in line with this evolution; either eliminate the veto, expand the membership of the Council, or transfer its authority to an empowered General Assembly. This would be necessary if the UN is to maintain any sort of relevance in the face of future wars.

Ukraine has also filed proceedings against Russia before the International Court of Justice under the Genocide Convention. It argued that Russia, in invading to prevent and punish a purported genocide, violated the treaty. The ICJ has indicated provisional measures ordering Russia to suspend its military operations, to order all armed units under its direction or control to not further military operations, and to not aggravate or extend the dispute. The International Criminal Court (ICC) has also opened its investigation into all past and present allegations of war crimes, crimes against humanity and genocide committed in Ukraine. However, the Court cannot investigate the crime of aggression as it lacks jurisdiction given Russia is not a state party. States have attempted to fill this accountability gap through universal jurisdiction, however, this is avoidable by refusing to enter a state which has indicated it is willing to exercise this mode of criminal jurisdiction. 

It has also been suggested that an ad hoc tribunal be established to investigate and prosecute Russia for aggression. However, it has been argued that this is a bad idea, not least because it does not do the same to countries which invaded Iraq to establish this tribunal. In fact, when it comes to Article 2(4), the US has violated this tenet so often in the past that it is hard-pressed to find a less worthy state to castigate Russia for its actions. Calls for Russia to respect the ‘rules-based-order’ ignore the fact that Western states have weakened this themselves. The death of Article 2(4) has been a long time coming: from NATO’s bombing of Kosovo, to contrived interventions in Iraq, Libya, Syria, and the legal acrobatics used to justify the killing of Qasem Soleimani. As Doebbler puts it, if the US and its allies want to go down this route they should start by admitting their “unlawful acts and compensate the victims in Afghanistan, Iraq, Syria, Libya, Palestine, Somalia, Yemen, Kosovo….”

Russia’s actions in Ukraine squarely violate the prohibition on the use of force in Article 2(4). None of its justifications for invading the country stand up to any form of scrutiny. While some may have sympathy for its reaction given NATO’s incessant provocations, it remains illegal under international law. However, as Moyn puts it, “Putin’s rationales for war are hypocritical — but so is idealizing a peaceful world order while accepting a system that permits the states most in need of limits to ignore international law.” So while Russia must be condemned for its aggression, the hypocrisy of the West should also be impugned. The current system allows for a few states to ensure that the law remains inapplicable to them. If it is to remain relevant, the Security Council and the veto system must be reformed. Otherwise, Moscow and Washington’s cavalier disrespect for Article 2(4) might as well be its death knell.

Ayesha Malik is a Research Fellow at the Research Society of International Law and Team Lead for the Conflict Law Centre.