Playing Fast and Loose with International Law – Legal Invalidity of Russia’s Use of Force Against Ukraine
Ahan Gadkari & Tushar Rajput
Jindal Global Law School
On February 24, 2022, the Russian Federation (Russia) initiated a “special military operation” in Ukraine. This was a transparent violation of the prohibition on the use of force within customary international law and codified within Article 2(4) of the United Nations (UN) Charter. Further, it was also inconsistent with Clauses 1 and 2 of the Budapest Memorandum on Security Assurances which consisted of three political agreements which provided security assurances to Ukraine. The operation went into motion after a speech was delivered by Russian President Vladimir Putin. The speech provides Russia’s justification for using force against Ukraine. From the speech, two significant points can be gathered. First, it 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 aims to end a genocide that has been conducted by the Kyiv regime for the past six years. The second justification seems to be invoking the responsibility to protect (R2P), a principle that Russia has historically denied. The assertions put forth by the Russian President are like a whiteboard with erroneous written all over it. The purpose of this piece is to provide a legal analysis of the assertions made by the Russian President and depict their inconsistency with international law. While every rule in international law is subject to exceptions, the exceptions to Article 2(4) of the UN Charter of IVI and the controversial R2P have specific criteria that must be fulfilled for them to be invoked. This piece first determines these criteria and then proves that the Russian operation did not fulfil the criteria for these exceptions based on general principles and customary rules of international law and international jurisprudence. Critique of IVI Justification Russia’s invocation of IVI to justify its use of force is erroneous under international law. The rationale of the concept is that the prohibition on the use of force only covers the use of force without consent. In the Nicaragua case, the International Court of Justice (ICJ) solidified IVI as a concept within international law. There, the ICJ held that the U.S. had violated international law by supporting the Contras in their rebellion against the Sandinistas and by mining Nicaragua’s harbors. The Nicaragua case has specific relevance to the Russia-Ukraine situation because it also limited the availability of IVI defense. There, the ICJ held that IVI would not apply based only on a request for help made by an opposition organization in another state. Indeed, it is difficult to see how the norm of non-intervention would survive in international law if the 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 stated that such an interpretation is not consistent with the present position of international law. Although the Nicaragua case was decided in the 1980s and there have been significant changes in international law since then, like the development of R2P, the principle of IVI established still rings true. Applying the same principle in this case, there is no legalizing effect of consent by the opposition factions in “Donetsk People’s Republic” and the “Luhansk People’s Republic” – especially since the consenting “government” has not been recognized by any State other than Russia. Therefore, the Russian defense of IVI has no merit. Critique of R2P Justification Russia made two major R2P claims. First, that the North Atlantic Treaty Organization (NATO) has consistently made use of this principle, while Russia opposed it. Second, the factual basis of their claim that Ukraine was conducting a genocide against the people of Donetsk and Luhansk. 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. The concept of R2P was formulated during the crisis in Kosovo to respond to the genocide of Kosovar Albanians when the UN Security Council (UNSC) was stuck in a stalemate. Further, in his speech announcing Russian military action in Ukraine, Putin criticized the use of force by NATO in various instances. He mentioned the examples of Syria and Libya and emphasized that NATO had used multiple methods to intervene in these countries without UNSC approval or consent of the State and now Russia wants to undertake similar actions. Even if we ignore the situations going on in these nations which justified their intervention, Russia’s arguments that since NATO violated international law, now Russia can violate international law makes no sense and lacks foundations. Therefore, it seems to be the case that the Russian President is invoking NATO’s allegedly wrongful prior uses of R2P as a part of his justification for Russia’s use of R2P in this instance. This argument seems extremely hypocritical and lacks consistency. Further, Russia’s claims of a “genocide” against the people of Donetsk and Luhansk by Ukraine cannot support a claim of statehood for those regions. The threshold for remedial secession or on the basis of self-determination in response to an alleged genocide seems to be placed awfully low by Russia – especially given that Russia asserted 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. Russia’s fast and loose play with international law further highlights its hypocrisy. This is a reminder of the Suez Canal Crisis period, where in one meeting of the UN General Assembly Emergency Special Session (GA ESS), the Soviet Union criticized the intervention of France and Britain in the Middle East. Simultaneously, in another UNGA ESS meeting, the Soviet Union supported its own intervention in Hungary. Both the legal qualification of genocide as an act and the social reality of this crime have significant impact. The drumbeat of accusations amidst the Russian-Ukraine conflict have highlighted that the Russian President has asserted that there is a ‘genocide’ being conducted by Ukraine, circulating a document to the UN Security Council accusing Ukraine of exterminating the civilian population. A nation whose history is rooted in Joseph Stalin’s mass killings in the 1930s should have a better understanding of the nature of the genocidal character and the standards required to conclude the same, which are absent in the present case. The Convention on Preventing and Punishment of the Crime of Genocide (Convention) defines genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such,” with the acts including “[k]illing members of the group; [c]ausing serious bodily or mental harm to members of the group; [d]eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; [i]mposing measures intended to prevent births within the group;” and “[f]orcibly transferring children of the group to another group.” Extermination, as described in Prosecutor v. Radislav Krystic in the ICTY, is understood as actions that are subordinated with an intent to destroy or cripple a human group permanently. The Convention differentiates between ‘attempt’ and ‘Partial act,’ as has previously been upheld by International Criminal Tribunal for Rwanda in Prosecutor v. Laurent Semanza. In the crime of attempted genocide, an entity does not realize its intent, whereas, in a crime of genocide, the acts are attributed to a state to establish the intent. After the realization of intent, it is also essential to examine the standard for intent. This standard is required to be ‘evidence fully conclusive’ as set out by the ICJ in multiple proceedings. Russia furthers its intervention along 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 had also concluded in its commentary to the Draft Rome Statute that such an irrational understanding of international standards is inconsistent with international law. The same in the context of genocide is established through establishing dolus specialis, i.e., a special intent. It neither requires many victims nor even their deaths, rather a systemic deprivation of identity and acts of inhumanity. Since the Russian annexation of Crimea and subsequent conflicts, this burden against Ukraine has not been met. Such proliferation of the Convention and existing principles of international law indicates genocide’s politicization. Even if we assume the Russian President’s assertions to be accurate, the claimed atrocities against the people of Donetsk and Luhansk by Ukraine, would qualify as crimes against humanity, not genocide. The separate codifications of genocide and crimes against humanity– one in international treaty and other in international custom –do not call for the same response from States, and it will still not be construed to be genocide. The actions of Russia 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. And what shall be the objective standards to determine the threshold of damage and the intervention itself? 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. Concluding Remarks Thus, the justifications provided by the Russian President of IVI and R2P in this instance do not meet the criteria necessary to be valid exceptions to the prohibition on the use of force. The actions by Moscow appear to be founded on the Russian assertion that the world is 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 foreign 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. Russia’s foreign policy and interpretation of international law have been rooted in hypocrisy. The international community must take effective action against Russia, or it will create a precedent that Russia can take any action with no consequences and play with international law however they wish.
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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, upon closer examination, the two notions seem to be somewhat similar since both deal with situations in which a state invites/requests the aid of another state’s military.  Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, (June 27).  Id. at ¶ 238.  Id. at ¶ 246.  Id.  See Laura Visser, Intervention By Invitation and Collective Self-Defence: Two Sides of the Same Coin?, 7 J. on the Use of Force and Int’l L. 292 (2020).  Marko Milanovik, Recognition, EJIL: Talk, (Feb. 21, 2022), www.ejiltalk.org/recognition (accessed April 21, 2022); Samuel Pitchford, Russian Recognition Of Donetsk And Luhansk: Legal Analysis, Human Rights Pulse (Mar. 2, 2022), https://www.humanrightspulse.com/mastercontentblog/russian-recognition-of-donetsk-and-luhansk-legal-analysis (accessed 21st April 2022).  Dagi, Supra note 6.  Charles Cater & David Malone, The Origins and Evolution of Responsibility to Protect At The UN, 30 Int’l Rel. 278 (2016).  The Sydney Morning Herald, supra note 5.  Id.  Milanovik, supra note 15.  Written Statement by the Russian Federation, Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo, 2009 I.C.J. (17 Apr.), available at https://www.icj-cij.org/public/files/case-related/141/15628.pdf.  Another reason why Kosovo’s example is significant here is because it was the only occasion when the ICJ accepted remedial succession. Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo, Advisory Opinion, 2009 I.C.J. (22 July), available at https://www.icj-cij.org/public/files/case-related/141/141-20100722-ADV-01-00-EN.pdf.  U.N. GAOR, First Emergency Special Session, 561st Plenary Meeting, U.N. Doc. A/PV.561 (Nov. 1,1956).  U.N. GAOR, Second Emergency Special Session, 564th Plenary Meeting, U.N. Doc. A/PV.564 (Nov. 4, 1956).  Milanovik, Supra note 15.  Putin’s Baseless Claims of Genocide Hint at More Than War, N.Y. Times (Feb.19, 2022) http://www.nytimes.com/2022/02/19/world/europe/putin-ukraine-genocide.html (accessed April 21, 2022).  Norman M. Naimark, Stalin’s Genocides (8th ed. 2010).  Steven K. Baum, The psychology of genocide (2008).  UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.  Prosecutor v. Radislav Krstic, Case No. IT-98-33, Judgement, ¶ 490-503 (Int’l Crim. Trib. for the Former Yugoslavia Aug. 2, 2002).  Prosecutor v. Laurent Semanza), Case No. ICTR-97-20-T, Judgement, ¶ 316 (May 15, 2003).  Id.  Amabelle C. Asuncion, Pulling the Stops on Genocide: The State or the Individual?, 20 EJIL 1195 (2009).  Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn.&-Herz. v. Yugs.), Judgement, 1996 I.C.J., ; Corfu Channel Case (U.K v. Alb.), Merits, 1949 I.C.J., (April 9). Int’l Law Comm’n, Rep. on the Work of its Forty-Eighth session, U.N. Doc. A/51/10, at 44 (1996).  Milanovik, supra note 15.  Steven Ratner, Can We Compare Evils? The Enduring Debate on Genocide and Crimes Against Humanity, 6 Wash. U. Global Stud. L. Rev. 583, 583-34 (2007).  Id.  Word by Word and Between Lines: A Close Look at Putin’s Speech, N.Y. Times, (Feb. 23, 2022) http://www.nytimes.com/2022/02/23/world/europe/putin-speech-russia-ukraine.html (accessed April 21, 2022). The views expressed in this post represent the views of the post’s author only.