For the dead, the bereaved, the injured, the homeless, the refugees, and others horribly affected by war, the technicalities of who against whom and why may not seem important. One cannot rank the atrocity of war and its impacts. Innocent people in Syria, Afghanistan, Tigray and many other places are suffering, and we must not close either our hearts or our doors to them.
However, from the international perspective, the Russian aggression and invasion of Ukraine is of a different nature. Each war is unique in its own terrible way, but the offensive against Ukraine shakes international law to the core. A State in possession of thousands of nuclear weapons and 900,000 active military troops is attacking its smaller neighbour without any possible legal justification.
Past wars have stretched the legal norms of the use of force in the absence of Security Council authorisation. Debates continue today regarding the validity of humanitarian intervention (Kosovo 1999 and Crimea 2014) and self-defence (Afghanistan 2001 and Iraq 2003). However, in each of these cases, while there could be reasonable disagreement on the facts as to whether the threshold for the use of force was met (some, admittedly, more reasonable than others), there was at least a prima facie legal case. Furthermore, there was an expectation that the parties using military force would respect the principle of proportionality, using a minimum of force to achieve their ends, and then withdraw. In Kosovo, Afghanistan and Iraq, there was no attempt to claim territory occupied initially through violence, something that is absolutely prohibited by international law. Even in Crimea, Russia does not justify the annexation of the Ukrainian territory based on its claim of humanitarian intervention or the de facto military occupation but rather on a spurious referendum that purportedly showed it was the will of the majority of the residents of Crimea to join Russia.
The Russian ‘case’ for war
Russia’s professed justifications for the attack on Ukraine are as follows. There is an entirely unfounded allegation of genocide against Russian-speaking and Russian-identifying Ukrainians. There is no evidence of this. None. And even if there were, that would justify interference to put a halt to the genocide; not to occupy the entire country.
Russia also claims, again without evidence, that there are crimes against humanity being committed against Russian-identifying Ukrainians. The UN Human Rights Committee, a body of 18 independent human rights experts, reviewed the human rights situation in Ukraine in February 2022. While they had a number of concerns, including a failure to investigate and prosecute effectively violations against civilians during the 2014 conflicts, there is no indication that there are ongoing or immediate risks to the Russian-identifying Ukrainians. Again, even if there were, that would justify measures to stop the abuses, including through UN human rights processes and the European Court of Human Rights; not to occupy the entire country.
Russia’s last argument is that the Russian-identifying Ukrainians in the Donetsk and Luhansk Oblasts have exercised their right to self-determination and declared their independence. It is therefore exercising self-defence to protect the two new self-declared States from Ukraine. Russia even sent a letter to the UN Security Council reporting on its invocation of the right to self-defence as required by the UN Charter, though its explanation is a verbatim reproduction of Putin’s rambling speech to the Russian people of 24 February 2022.
Peoples who have been colonised (occupied by another civilisation) enjoy a right to self-determination, but minorities who were not colonised do not have such a right. If any minority group could declare its independence at any time, the order of international law would collapse. This has, in fact, been Russia’s argument for its brutal repression of its own Chechen separatists. But in extreme circumstances, when a minority has faced extensive crimes against humanity and there is no other way to secure the safety, integrity and survival of the group concerned, they may claim independence. This is called ‘remedial secession’.
The Russian position on remedial secession is that it is an absolute last resort. In fact, its general position does not differ from most other States as well as various courts. First of all, human rights should be upheld within the State. Failing that, a group may have a right to limited self-government or autonomy (i.e., some form of devolved administration), without, again, disrupting the external State borders. Ukraine agreed to limited self-government for the Luhansk and Donetsk Oblasts in 2015, further expanding their autonomy in 2018 and again in 2021. In reality, the two regions have been in a state of conflict since 2014, and Russian-backed and armed separatists are in de facto control. Only if there is no possibility to protect the group within the existing State is independence permitted.
In its submission to the International Court of Justice regarding the Declaration of Independence of Kosovo following years of extreme and systematic violations of the human rights of the Kosovars, including mass killings and forced relocations in an effort to remove them entirely from certain parts of Serbian territory, Russia stated as follows:
It is important to note that self-determination can be exercised within an existing State. This “internal self-determination” is in fact preferred in the post-colonial world.
[Remedial secession] can be exercised only in extreme conditions, where violent acts of discrimination are continuously committed against the people in question and all the possibilities for a resolution of the problem within the existing State have been exhausted…. [quoting the Quebec reference]: a right to external self-determination… arises only in the most extreme cases, and even then, under carefully defined circumstances.
Those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the present State, threatening the very existence of the people in question.
To sum up, the situation [in Kosovo] does not even begin to come close to the “extreme circumstances” under which the right to secession may be invoked.
Based on its own position on remedial secession, Russia has no basis on which to claim that these two Ukrainian oblasts are now independent States that are being subjected to ‘attack’ by Ukraine. And even if it did, that would justify interference to protect the two oblasts/States; not to occupy the entire country.
But what about?
There have, of course, been many unlawful acts of war since the UN Charter was signed in San Francisco on 26 June 1945. We should protest them all. The present author marched through the streets of London in 2002 to protest the coming US-UK-led war on Iraq; and she stood in the town square in Akureyri in 2022 to protest the Russian war on Ukraine. There are victims of war in all parts of the world, and we must support them all. Condemning Russia’s aggression does not mean we support the warmongering of others: how could it? Supporting Ukrainians (and, indeed, supporting Russian victims of a war they did not choose) does not mean we turn a blind eye to victims of war elsewhere. Calling for the sovereignty of Ukraine against its belligerent neighbour does not mean we stop untangling the doctrine of sovereignty in colonial situations (including of Indigenous Peoples) or that we are not concerned about any human rights violations that occurred or may occur in Ukraine or anywhere else.
The consequences for international law
Russia’s breach of the most fundamental principle of international law – the prohibition of the use of force – is so flagrant and its purported justifications so poor that it threatens not only Ukraine but the system by which our chaotic world is made a little less chaotic. There have long been concerns that a State might use the doctrine of humanitarian intervention as a cover for geopolitical ends; but none has done so quite so blatantly until now. The danger posed by Russia as a nuclear-weapon wielding State does not need restating. Russia’s veto prevents the United Nations Security Council from taking any effective action. It is inconceivable that Putin’s advisors and legal experts consider any of their arguments credible. Instead, the invasion of Ukraine signals that Russia is thumbing its nose at international law.
Today’s war in Ukraine is different. This is not a war of Russia v Ukraine, Russia v NATO or even Russia v ‘The West’. This is a war of Russia against the very foundations of international law.
Don’t turn the lights off yet
Is this the end of international law as we know it? The end of the United Nations? Not yet.
The overwhelming response of the international community condemning the invasion demonstrates that the vital signs of international law, although registering signs of shock, are still functioning. At the United Nations General Assembly, only Belarus, Eritrea, North Korea and Syria voted with Russia against the resolution, unambiguously titled ‘Aggression Against Ukraine’, demanding the immediate withdrawal of Russian forces from all of Ukraine’s territory. With friends like these…
International law continues to govern this conflict for the better. The prosecutor of the International Criminal Court has already warned the Russian military that he is watching. Every Russian general in Ukraine right now must think twice before conducting any war crime, with the shadow of a long jail sentence awaiting those who breach egregiously the laws of war. The International Court of Justice will consider the application of Ukraine to decide if Russia has distorted the meaning of genocide, and it may first also order emergency preliminary measures requiring Russian to withdraw. The UN Human Rights Council has established a Commission of Inquiry at Ukraine’s request.
The Council of Europe has suspended Russia from political cooperation but Russia remains subject to the European Convention of Human Rights. The European Court of Human Rights has already granted urgent interim measures reminding Russia of its obligations to refrain from military attacks on civilian targets and ensure the safety of protected medical services. The very making of the order indicates that the Court considers there is ‘an imminent risk of irreparable harm.’
The States who seek to support Ukraine must also respect international law. They must ensure that sanctions are proportionate, do not target human rights of innocent Russian civilians, and can be reversed as soon as Russia has withdrawn from Ukraine. Should other States become involved in military conflict, they must follow the laws of war, including the prohibition on attacking Russian civilian targets and protecting prisoners of war. They must treat refugees with dignity, not only those fleeing Ukraine but those coming from any war zone now and in future.
The Russian Federation itself continues to follow the formalities of international law, even as it violates the substance, maintaining its representation at the United Nations and submitting its letter to notify the Security Council of its use of force in purported self-defence. This demonstrates that even in these dark times, Russia retains a modicum of respect for the institutions of the international order.
The fight for international law is not over; instead, it has become more important than ever.