Image: Mariupol City Council showing a maternity hospital in Mariupol damaged by a Russian strike.
Source: BBC News, ’Ukraine war: Three dead as maternity hospital hit by Russian air strike, 10 March 2022 <https://www.bbc.com/news/world-europe-60675599> accessed 1st April 2022.
Introduction
As a world pandemic is coming to an end, the international community is turning its way toward the unfolding of a new tragedy – the war in Ukraine. Despite Putin’s denial to invade the country, around 100, 000 Russian troops were gradually placed on the Ukrainian border from the beginning of January 2022.[1] Scenes of armed vehicles and troops spread fear across Europe, bringing back dark memories of World War II. On the 22nd of February, President Putin signed a decree recognizing as independent the Ukrainian regions of Donetsk and Luhansk,[2] in contravention of the 2015 Minsk peace agreement by which leaders agreed to respect Ukraine’s sovereignty and territorial integrity.[3] The storyline to justify the invasion is NATO’s threats to Russia’s territorial integrity, combined with the need to ‘demilitarize’ and ‘de-Nazify’ Ukraine to save civilians.[4] Truly, Putin seeks to resist Ukrainian ties to the West’s military alliances as well as its ties to the European Union. At the international level, the UN Security Council failed to adopt a Resolution demanding that Moscow immediately stops its attack on Ukraine and withdraws all troops following exercise of its veto power by Russia.[5] However, on Wednesday, in an emergency session of the UN General Assembly, 141 Member States voted in favor of a resolution which “demand that the Russian Federation immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.”[6] While the military operation continues to unfold, it is necessary to review the events and their consequences under international law as a variety of issues are being raised.
Prohibition of the use of force under international law
The focus is first on examining the legality of the use of force. One of the fundamental norms of international law, upon which was established the international order at the end of the World War II is the prohibition of use of force. Article 2(4) of the Charter of the United Nations stipulates that “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.”[7] It is true that some disagreements and debates concerning the scope of the prohibition persist, with uncertainty regarding whether economic coercion[8] or cyberattack alone amount to use of force. Yet the core content of the rule is clear, and military operations clearly falls within the ambit of the prohibition. Thus, the military operation launched by Russia on the 28th of February 2022 contravenes article 2(4) of the UN Charter. By seeking to justify its military intervention under the Charter, Russia has recognized its actions were in breach of the prohibition of use of force. However, one can wonder whether Russia had already breached international law before its military invasion. Indeed, article 2(4) is very broad as it forbids not only use of force but also threat of use of force. Although the Charter establishes an objective threshold, it does not define either term. Therefore, state interpretation of what constitutes threat and use of force is critical. It is widely accepted that a threat violates international law if the force threatened would breach the prohibition.[9] Applying this legal reasoning, Russia is to be considered in contravention of article 2(4) from the moment troops gradually gathered at the Ukrainian border. Nonetheless, it is important to note that states rarely debate about ‘threat’ for the purpose of article 2(4), focusing instead on actual use of force or threat for the purpose of anticipatory self-defence.[10]
No valid legal justification – a clear violation of international law
Although it is evident that the military escalation in Ukraine amount to use of force, the prohibition of the use of force is not absolute and the Charter provides for some limited exceptions to the rule. To determine whether there is a violation of international law, one must assess the legal justification advanced by Russia since legality is to be assessed in accordance with the legal position argued by the states involved.[11] Here it is important to distinguish between legal arguments and political views.
Indeed, under the Charter, only authorization from the Security Council[12] and ‘self-defence’ in accordance with article 51 are valid legal justifications to resort to force.[13] In the Security Council and in the General Assembly, the Russian Federation have justified the military operation based on self-defence.[14] However, it is difficult to see how Russia could successfully claim this right. Self-defence only applies when several legal requirements are met and the first hurdle for Russia is the requirement that self-defence can only be triggered as a response to an armed attack.[15] The ICJ has clarified that only “the most grave forms of the use of force” constitute armed attack,[16] establishing a gravity threshold. In the present circumstances, Russia would not be able to discharge the burden of establishing themselves as victim of such attack as no attack has taken place on its territory. Furthermore, the claims raised by Russia to justify its invasion, namely the threat posed by NATO and the need to protect its nationals abroad are also bound to be legally unsuccessful. With regards to the supposed threat posed by NATO, it does not constitute itself an armed attack for the purpose of self-defence and would not justify use of force against Ukraine, who is not a member of the military alliance. With regards to the protection of nationals abroad, there is no evidence supporting attacks against Russians in Ukraine. Moreover, this doctrine, which falls within the ambit of self-defence, has not yet gathered sufficient support to become a customary norm of international law.[17] In any case, Russia’s claim for self-defence cannot be supported under international law as it cannot satisfy the proportionality requirement. It is now customary law that self-defence can only be legally exercised if the forceful response to an armed attack is ‘necessary’ and ‘proportionate’. The International Court of Justice stated in Nicaragua that whether self defence “is lawful depends on observance of the criteria of the necessity and the proportionality of the measures taken in self-defence.”[18]
In the present circumstances, in the absence of an armed attack from Ukraine, it is difficult to argue that the use of force by Russia as a response was necessary, as other avenue were available to negotiate. Furthermore, the intensity, scope, and duration of the forceful intervention pursued by Russia, launching a full-scale military operation, which is still ongoing, on the whole Ukrainian territory cannot be considered proportionate to any of the threat or danger alleged by Russia. In the absence of any legal justification, the military operation is an undeniable violation of international law. In comparison, Ukraine can build a much stronger claim for self-defence, being victim of an armed attack on its territory, to justify its use of force.
Russian-Ukrainian conflict under IHL
The second part of this article turns towards the legal regulation of the conflict between Russia and Ukraine. Unilateral breach of force and violation of article 2(4) UN Charter on the side of Russia has been established. With Ukraine’s resort to self-defence in accordance with article 51 of the UN Charter, an ongoing military conflict is taking place in the East of Europe. International humanitarian law, also referred to as jus in bello, is an area of law which is applicable in situations of armed conflict and regulates the conduct of belligerents in hostilities. Conflicts were initially regulated by customary international humanitarian law, but throughout time states ratified treaties, especially the four Geneva Conventions in 1949 and the two Additional Protocols in 1977 and additional specific treaties. As the belligerent parties are states, this is an international armed conflict.[19] This classification is crucial as International Humanitarian Law is built upon a dichotomy between international and non-international armed conflict.
The Geneva Conventions regulates the conflict between Russia and Ukraine, from the moment Russia launched its military operation. According to the common article 2 of the Geneva Conventions an international conflict exists when two States are involved in circumstances of war or when one State directs force towards another.[20] It stipulates that the Conventions “apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”. As both states are Parties to the Conventions and the Additional Protocol I which regulates IAC, all the provisions contained therein applies despite the absence of a formal declaration of war. One of the advantages of the GC was to build IHL upon a factual assessment.[21] Since states rarely issue a formal declaration of war, in 1949 GC the term ‘armed conflict’ was used to prevent states from avoiding the application of the laws of war. [22]
The law of war was designed to offer protection to civilians and the sick and wounded in battle. It addresses the rules and manners of warfare and condemns any kind of unnecessary suffering. According to article 51 of the first additional protocol to the GC, the parties to the conflict not only must at all times distinguish between civilians and combatants but civilians and civilian objects may never be the target of an armed attack. However, Russian military has repeatedly directed its aggression towards civilians, blocking escape roots, shelling civilian buildings and targeting schools and hospitals.[23]
What consequences for Russia and the international order?
Although all the consequences of the ongoing conflict cannot be examined yet, when it comes to the legal consequences for Russia, the international order offers little remedy. At the UN level, there will be no binding resolution as Russia’s veto will prevent action from the Security Council, demonstrating once again the shortcomings of the UN systems as it was founded in 1945. However, the resolution adopted at the General Assembly has significant impact. Although resolutions from the General Assembly are not legally binding, their persuasive nature is well-known. The wide condemnation of the military operation in Ukraine, while it does not terminate the violation, confirms that the prohibition of the use of force is not dead, as some commentators have claimed.[24] The position endorsed by states in the General Assembly has legal weights, as it contributes to reinforce the norms of international law. Yet, the legal consequences for the Russian Federation are likely to be little.
While the facts may constitute an act of aggression as defined in the Statute of the International Criminal Court (ICC),[25] Russian leaders cannot be condemned of the ‘crime of aggression’. Indeed, the ICC does not have jurisdiction over Russia for this crime. Article 15(bis) sets out that the court cannot exercise jurisdiction for crime of aggression over a state which is not a party to the Rome Statute,[26] which is the case of Russia. Nonetheless, the conflict could lead to individual legal sanction under international criminal law. Indeed, 39 State Parties to the Rome Statute have already referred the Ukrainian situation to the Office of the Prosecutor of the ICC which will open an investigation for allegations of war crimes, crimes against humanity or genocide.[27] However, to proceed, the court will have to establish jurisdiction. As neither States are parties, Ukraine as the territory where the crime are being committed must make a declaration in accordance with article 12(3).[28] Interestingly, to proceed with a situation involving European States will strengthen the credibility and universality of the International Criminal Court. Indeed, it will enhance the perceived legitimacy of the court, overcoming the African perception of selectivity and unfairness.[29]
[1] New York Times “How Russia’ Military is Currently Positioned” 7 January 2022, available at <https://www.nytimes.com/interactive/2022/01/07/world/europe/ukraine-maps.html>.
[2] The Guardian “Luhansk and Donetsk regions recognised as independent states by Russia – as it happened” updated 23rd February 2022, available at <https://www.theguardian.com/world/live/2022/feb/21/russia-ukraine-news-latest-crisis-putin-biden-summit-kyiv-kiev-russian-invasion-threat-live-updates?page=with:block-62141dd48f08b28bb37dbcf2>.
[3] N. Bentzen & E. Anosovs “EPRS: Minsk Agreement Still to be Consolidated on the Ground” 12 February 2015, available at <https://www.europarl.europa.eu/RegData/etudes/BRIE/2015/548991/EPRS_BRI(2015)548991_EN.pdf>.
[4] BBC News “Why is Russia invading Ukraine and what does Putin want?” 4March 2022, available at <https://www.bbc.com/news/world-europe-56720589>.
[5] UN News “Russia Blocks Security Council Action on Ukraine” 26 February 2022, available at <https://news.un.org/en/story/2022/02/1112802>.
[6] UNGA Res A/ES-11/L.1 2 March 2022, 4.
[7] Charter of the United Nations, (adopted 26 June 1945, entered into force 24 October 1945) 892 UNTS 119, Article 2(4).
[8] Christine Gray, International Law and the Use of Force (Oxford University Press, 4th Ed., 2018), p 10.
[9]Case concerning Military and paramilitary activities in and against Nicaragua (Nicaragua v United States of America) [1986] ICJ 14, at 227.
[10] Anticipatory self-defence is the resort to self-defence in response to a threat of an imminent armed attack, which has not yet occurred. See Christine Gray, International Law and the Use of Force (Oxford University Press, 4th ed., 2018), chapter 4. In this chapter, the author demonstrate that under international law, armed attack is still a critical element of the right to self-defence, and that there is not sufficient support yet for a right to self-defence against threat of armed attack.
[11] Ibid 9, at 207.
[12] Ibid 7, Article 42.
[13] Ibid 7, Article 51.
[14] UN News, ‘Security Council Fails to Adopt Draft Resolution on Ending Ukrainian Crisis, as Russian Federation Wields Veto’ available at: < https://www.un.org/press/en/2022/sc14808.doc.htm>
[15] Ibid 7, Article 51.
[16] Ibid 9 at 191.
[17] Ibid 8, p 165-166.
[18] Ibid 9, at 194
[19] Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Geneva, 12 August 1949, Article 2.
[20] See also ICRC Commentary to Article 2 of GC IV: “Any difference arising between two States and leading to the intervention of members of the armed forces is an armed conflict… “.
[21] H. Duffy, The ‘War on Terror’ and the Framework of International Law [Cambridge University Press] 2015, 2nd ed, p. 349.
[22] G. Hernandez International Law, [Oxford University Press] 2019, Ch. 15.2.1.
[23]. Amnesty International, ‘Invasion of Ukraine is an act of aggression and human rights catastrophe’,(1 March 2022) <https://www.amnesty.org/en/latest/news/2022/03/russia-ukraine-invasion-of-ukraine-is-an-act-of-aggression-and-human-rights-catastrophe/> [Accessed 14 March 2022].
[24] Thomas M. Franck, “Who Killed Article 2(4)? Or: changing norms governing the Use of Force by State, American Journal of International Law (1970), Vol 64, pp 809-837.
[25] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, Article 8 bis.
[26] Ibid 23, Article 15 bis (5).
[27] ICC “Statement of ICC Prosecutor, Karim A.A. Khan QC, on the Situation in Ukraine: Receipt of Referrals from 39 States Parties and the Opening of an Investigation” 2 March 2022, available at <https://www.icc-cpi.int/Pages/item.aspx?name=2022-prosecutor-statement-referrals-ukraine>.
[28] Ibid 23, Article 12(3).
[29] Du Plessis Max, “Universalising International Criminal Law: The ICC, Africa and the problem of political perception”, December 2013, Institute for Security Studies Paper, available at: <https://www.issafrica.org/uploads/Paper249.pdf>
Bibliography
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Authors
Athénaïs Levraud, Research Assistant, RCIL & HR (athenais.levraud@gmail.com)
Ema Hazarosian, Research Assistant, RCIL & HR (emahazarosian@gmail.com)