A Leopard Never Changes its Spots - Legal Validity of Russia’s Use of Force Against Ukraine
About the authors: Ahan Gadkari serves as a Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission. He has previously served as an intern at the Centre for Trade and Investment Law, Government of India. Tushar Rajput serves as an intern at the Centre for Trade and Investment Law, Government of India.
"Russian Bear 'H' Aircraft" by Defence Images, available here.
On February 24, the Russian Federation initiated a “special military operation” in Ukraine. This was a transparent violation of the prohibition on the use of force codified by Article 2(4) of the United Nations (UN) Charter. Further, it was also inconsistent with Clause 1 and 2 of the Budapest Memorandum on Security Assurances. Vladimir Putin ordered the operation shortly after delivering a fiery speech outlining his intentions to invade Ukraine, and offering a justification for the use of force. (English Translation: here). First, Putin argued, his use of force is an intervention via invitation (IVI) for collective self-defense under Article 51 of the UN Charter within the so-called “Donetsk People’s Republic” and the “Luhansk People’s Republic.” Second, it is to end a genocide he claimed Ukraine has been perpetrating against ethnic Russians. This second justification seems to be invoking the responsibility to protect (R2P), a principle that Russia has historically denied.
The purpose of this piece is to provide legal analysis of the assertions made by the Russian President and to explain why they are inconsistent with international law. Every rule in international law is subject to exceptions. The exceptions to Article 2(4) of the UN Charter and the controversial R2P doctrine have specific criteria that must be fulfilled before they can be invoked.
Intervention Via Invitation:
IVI and collective self-defense are sometimes seen as two independent exceptions to the prohibition of the use of force, and hence as two distinct reasons for governments to legitimately employ force. However, the two doctrines are substantially similar, since both deal with situations in which a state invites/requests the aid of another state’s military.
The rationale of the concept is that the prohibition on the use of force only covers the use of force without consent. The International Court of Justice (ICJ) codified IVI as a concept within international law in the Nicaragua case. However, the ICJ also stated that the concept of non-intervention would lose its legal efficacy if the intervention were justified only based on a request for help made by an opposition organization in another State. Indeed, it is difficult to see how the principle of non-intervention would survive in international law if intervention were permitted at the opposition’s request. This would allow any state to interfere at any time in another State’s internal affairs, whether at the request of the administration or the opposition. The ICJ further stated that such an interpretation is not consistent with the present position of international law (para. 246).
Applying this principle here, the legalizing effect of consent by “Donetsk People’s Republic” and the “Luhansk People’s Republic” must be questioned. Especially since the situation is such that the consenting government is not legitimate and not recognised by any State other than Russia. Therefore, the Russian defense of IVI is baseless.
Defense of Responsibility to Protect:
It is essential to reiterate that Russia has historically denied the use of R2P as a valid exception to the prohibition on the use of force. Further, in his speech, the Russian President criticized the use of force by the North Atlantic Treaty Organization (NATO) in various instances. The Russian President stated:
“Then came the turn of Iraq, Libya, Syria. The illegitimate use of military force against Libya, the perversion of all decisions of the UN Security Council on the Libyan issue led to the complete destruction of the state, to the emergence of a huge hotbed of international terrorism, to the fact that the country plunged into a humanitarian catastrophe that has not stopped for many years. civil war. The tragedy, which doomed hundreds of thousands, millions of people not only in Libya, but throughout this region, gave rise to a massive migration exodus from North Africa and the Middle East to Europe.
A similar fate was prepared for Syria. The fighting of the Western coalition on the territory of this country without the consent of the Syrian government and the sanction of the UN Security Council is nothing but aggression, intervention.
However, a special place in this series is occupied, of course, by the invasion of Iraq, also without any legal grounds. As a pretext, they chose reliable information allegedly available to the United States about the presence of weapons of mass destruction in Iraq. As proof of this, publicly, in front of the eyes of the whole world, the US Secretary of State shook some kind of test tube with white powder, assuring everyone that this is the chemical weapon being developed in Iraq. And then it turned out that all this was a hoax, a bluff: there are no chemical weapons in Iraq. Unbelievable, surprising, but the fact remains. There were lies at the highest state level and from the high rostrum of the UN. And as a result: huge casualties, destruction, an incredible surge of terrorism.”
The Russian President is criticizing the NATO countries for using R2P as a part of his justification for its use by Russia in this instance. This argument seems extremely hypocritical and lacks consistency.
Turning to the so-called “genocide” against the people of Donetsk and Luhansk by Ukraine and granting statehood. In declaring a genocide, Russia has lowered the standard of agreession required for remedial secession. This contrasts with Russia’s assertion that Kosovo did not meet the threshold for ceding from Serbia even after the International Criminal Tribunal for the former Yugoslavia (ICTY) documented the mass atrocities faced by the Kosovar Albanians.
The crime of genocide has an important nexus requirement. The abilities of domestic courts and the responsibility of states are subject to legal action taken; however, even before dwelling into these concrete steps, implications in international relations are to be addressed. President Putin has asserted that there is a ‘genocide’ being conducted by Ukraine, and circulated a document to the UN Security Council accusing Ukraine of exterminating the civilian population. Russia’s actions raise questions as to whether a moral right of humanitarian intervention is converted into a right under international law in the event of attempted genocide. Further, it is important to consider the objective standards that determine the threshold of damage before intervention is acceptable. The invocation of genocide represents more than just a shallow casus belli. Genocide entails an aggravated regime of state responsibility. It is a composite crime and consists of acts which are themselves punishable by most existing legislations. The Convention on Preventing and Punishment of the Crime of Genocide (convention) defines acts amounting to genocide and enumerates material offences with necessary mental elements. Extermination, as described in Prosecutor v. Radislav Krstic in the ICTY (para. 492-505), is understood as actions that are subordinated with an intent to destroy or cripple a human group permanently (also see statements made by Sir Hartley Shawcross and Sir David Maxwell Fyfe here.)
The convention differentiates between ‘attempt’ and ‘partial act,’ as has previously been upheld by the International Criminal Tribunal for Rwanda in Prosecutor v. Laurent Semanza (para. 316). In the crime of attempted genocide, an entity does not realise its intent, whereas, in a crime of genocide, the acts are attributed to a state to establish the intent. Russia furthers its intervention on the lines of the attempt of genocide, thus shall never meet the standards of intent required to act against Ukraine. Further, the International Law Commission has also held that such an irrational understanding of international standards is inconsistent with international law (page 44). Genocide requires neither many victims nor their deaths, rather a systemic deprivation of identity and acts of inhumanity. Since the Russian annexation of Crimea and subsequent conflicts, this burden of proof against Ukraine has not been met. Such proliferation of the convention and existing principles of international law indicates genocide’s politicisation. The claimed atrocities against the people of Donetsk and Luhansk by Ukraine, even if we assume the Russian President’s assertions to be accurate, the acts would qualify as crimes against humanity, the separate codifications – one in international treaty and other in international custom, does not call for the same response from a State and it will still not be construed to be a genocide.
Thus, the justifications provided by the Russian President regarding IVI and R2P do not meet the criteria necessary to be valid exceptions to the prohibition on the use of force. The actions by Russia appear to be founded in the warped Russian assertion of the world being dominated by a hostile west, leaving them to be the sole protectors of the people of Russia and Ukraine. Russia never accepted the right of Kosovo for self-determination or remedial cessation on the basis of genocide. However, Russia wants to use the same argument when it favors its policy. Russia’s invasion of Ukraine is neither justified under IVI or R2P nor does it meet their own interpretation of international law in the past.