Is Russia's 'Military Operation' in Ukraine a Violation of International Law?
Vladimir Putin has tried to justify the attacks as needed for self-defence and to prevent genocide.
Speaking after Russian President Vladimir Putin's announcement of a 'special military operation' in Ukraine, United Nations Secretary General Antonio Guterres said that Russia's actions violate the UN Charter.
"What is clear for me is that this war doesn’t make any sense. It violates the principles of the Charter. And it will cause, if it doesn’t stop, a level of suffering Europe has not known since, at least, the Balkan crisis."UN Secretary General Antonio Guterres at press conference on 23 February (New York)
NATO Secretary General Jens Stoltenberg termed Russia's actions as a "reckless and unprovoked attack on Ukraine", and "a grave breach of international law".
The European Council and European Commission have termed this an "unprecedented military aggression against Ukraine", and said that "Russia is grossly violating internal law".
But does the ongoing 'special military operation' violate international law, or have the Russians acted within the scope of what is permissible?
The Prohibition of the Use of Force & the Right to Self-Defence
International law is often vague and uncertain, but there is one rule of international law that is set in stone: You cannot use force against another country in its own territory.
Article 2(4) of the Charter of the United Nations spells out the prohibition against the use of force as follows:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
Any attack by one country on the territory of another country, regardless of the target or the casualties/damage, violates this prohibition.
Of course, the prohibition of use of force cannot be a blanket one, and the UN Charter expressly recognises a country’s right of self-defence. Article 51 says that no other provision of the Charter shall “impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations.”
The right of self-defence can even be preemptive, if we go by customary international law. The doctrine of preemptive self-defence states a nation can act in self-defence before an armed attack takes place against them, provided they can show there was a necessity to act which was “instant, overwhelming, leaving no choice of means, and no moment for deliberation.”
While there are those who claim Article 51 of the UN Charter doesn’t recognise the right of preemptive self-defence, state practice from the Nuremberg Tribunals to Israel’s air strikes in the Six Days War indicate it has become part of customary international law, and this has been acknowledged by many scholars and jurists.
India, for instance, relied on the doctrine of preemptive self-defence to justify the Balakot airstrike in February 2019.
What this means, therefore is that an act of aggression, where one country attacks another one without an armed attack on them first, or a genuine threat of an imminent armed attack, is a violation of the UN Charter.
In addition to the doctrine of self-defence, there are certain other arguments which can be made to justify an attack on another country. The Genocide Convention imposes an obligation on countries to prevent genocide, which the International Court of Justice has recognised to have extra-territorial application.
The doctrine of the 'Responsibility to Protect' evolved around the turn of millennium following a reckoning over the failure of the world to prevent genocide in Rwanda and Serbia, and the eventual NATO actions in Kosovo.
In 2005, the UN General Assembly adopted a resolution affirming the "responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity", including by non-peaceful means if other measures fail.
Russia's Justifications for the Attack
In his speech in the early hours of 24 February announcing his 'special military operation' in Ukraine, Putin sought to tick the right boxes to justify Russia's actions in international law.
First, Putin talked about the dangers that NATO expansion posed to Russia, in conjunction with increased military development in Ukraine. "As NATO expands to the east, with every passing year, the situation for our country is getting worse and more dangerous," he said, adding "Further expansion of the NATO infrastructure and the beginning of military development in Ukraine’s territories are unacceptable for us."
He then reiterated a claim he has been making since 2014, when Ukraine saw the ouster of pro-Russian president Viktor Yanukovych, that what happened there was a "coup".
According to him, the "forces that carried out a coup in Ukraine in 2014" have rejected a peaceful settlement to the conflict in the Donbas region of eastern Ukraine (where the two breakaway 'republics' in Donetsk and Luhansk are located).
He then reiterated the claim being made by Russia in recent weeks that the Ukrainian government is engaged in a genocide against the people in those regions.
“As I said in my previous address, one cannot look at what is happening there without compassion. It is simply not possible to stand all this any more. It is necessary to immediately stop this nightmare – the genocide against the millions of people living there, who rely only on Russia, only on us. These aspirations, feelings, pain of people are the main motivation for us to take the decision to recognise the people’s republics of Donbas."Vladimir Putin's address on 24 February
He also claimed that the "extreme nationalists and neo-Nazis in Ukraine", supported by NATO, "will never forgive the Crimeans and Sevastopol residents for choosing reunification with Russia." Following the revolution against the Yanukovych government in Ukraine in February 2014, Russia annexed Crimea after pro-Russian separatists (supported allegedly by undeclared Russian forces) overthrew local authorities.
Putin insisted that "they" would "crawl" into Crimea, and invoked the attacks by Ukrainian nationalists at the beginning of World War II in support of Hitler. He said that the Ukrainian government lay claim to a number of other Russian territories.
“The course of events and the incoming information show that Russia’s clash with these forces is inevitable. It is only a matter of time: they are getting ready, they are waiting for the right time. Now they also claim to acquire nuclear weapons. We will not allow this to happen.”Vladimir Putin's address on 24 February
Having established all these baselines, Putin then said that "We have been left no other option to protect Russia and our people... The situation requires us to take decisive and immediate action."
He claimed that the breakaway republics in the Donbas region had asked Russia for help, and so the action taken by Russia is "in accordance with Article 51 of Part 7 of the UN Charter".
“Its goal is to protect people who have been subjected to abuse and genocide by the regime in Kyiv for eight years. And for this we will pursue the demilitarisation and denazification of Ukraine, as well as bringing to justice those who committed numerous bloody crimes against civilians, including citizens of the Russian Federation."Vladimir Putin's address on 24 February
Using these justifications, Russia is evidently seeking to argue that its actions do not violate the UN Charter or other agreements such as the Budapest Memorandum of 1994, where it agree to respect the territorial sovereignty of Ukraine.
So are Russia's Actions Within the Bounds of International Law?
While Putin's address sought to justify his actions on the basis of (preemptive) self-defence and the responsibility to prevent genocide, there is scant evidence for either of these concerns.
Since 2014, when Russian-backed separatists broke away from Ukraine and began fighting with the Ukrainian forces in the Donbas region, 14,000 people have lost their lives. However, there is no credible evidence that the Ukrainian government has attempted or planned any genocide against the people of the region.
Even in the last few months, there has been no significant military action by the Ukrainian army against the region. This is in fact in contrast with what happened in 2008 in Georgia, when Russian forces crossed the border with the eastern European country and occupied several cities in defence of the people of the breakaway region of South Ossetia – the Georgian military had actually launched an attack in South Ossetia to deal with separatists at that time.
Nor is there any credible evidence of a threat from Ukraine to Crimea or any other Russian territories, let alone an imminent threat that would satisfy a right to preemptive self-defence.
It therefore appears that Russia's 'special military operation' in Ukraine is in fact an attack and an invasion, and an act of aggression which violates international law.
Of course, in such situations, countries generally take actions based on the intelligence they have, as was seen with the invasion of Iraq by the US and its allies in 2003. The lack of evidence for their actions only comes into question if the matter is taken up by the UN Security Council or the International Court of Justice.
Given Russia's veto as a permanent member of the Security Council, there will be no decisive declaration of illegality or binding action against Russia from that body.
As far as the ICJ is concerned, Ukraine would have to take Russia to the international court, but Russia can easily ignore any order for provisional measures or even an eventual final verdict because, again, enforcement of any orders from the court will require Security Council resolutions, which again will be impossible given Russia's veto.
Even though there may be no definitive statement of the illegality of Russia's actions in international law, this does not of course stop other countries or supranational organisations like the EU from taking action against Russia.
Sanctions have already been imposed by the US, UK and EU against Russia, and countries can use Article 51 of the UN Charter as a justification to offer military support to Ukraine as well, since there is clear use of force against Ukraine at this time. It does not appear however that any country is willing to send military forces to assist Ukraine at this time.
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