The basic international law
One of the most fundamental rules of international is that States are prohibited from using force to resolve their international disputes. Any State that uses force against the territorial integrity or political independence of another State violates this solemn rule of international law.
Applying this rule, the use of force by Russia against Ukraine is an escalation of a dangerous situation threatening international peace and security that violates the prohibition of the use of force under international law. Russia’s action is ostensibly an act of aggression against another sovereign State, unfortunately, it is also a stark reminder of the many violations of international over the past fifty years that have been committed by other states, especially the United States and its allies, and the impotence of the United Nations.
While the situation is still fluid and the extent to the violation of international remains to be determined, it would seem undisputed that the bombing of military sites within Ukraine—thus not necessarily in Donetsk and Luhansk—is contrary to article 2, paragraph 4 of the Charter of the United Nations (CUN) that prohibits the use of force against the territorial integrity or political independence of Ukraine. So too is the movement of Russian military into Ukraine and their engagement in armed hostilities.
There are other legal obligations that provide for a prohibition of the use of force such as Minsk Agreements from 2014 or the General Treaty for Renunciation of War as an Instrument of National Policy (also known as the Kellogg-Briand Pact or Pact of Paris). The Minsk Agreements are a series of agreements drafted by the Trilateral Contact Group on Ukraine that consisted of the Organization for Security and Co-operation in Europe or OSCE, Russia and Ukraine. The Agreements are, however, very vague and call for a ceasefire rather than an indefinite obligation not to use force. Moreover, Russia expressly repudiated the Minsk Agreements before its use of force. The Minsk Agreements are thus arguable not in force on 24 February when Russia began is armed attack against Ukraine. The Pact of Paris was ratified by the Soviet Union and as successor States to this entity both Russia and Ukraine are bound by it. This treaty does prohibit the use of force by State parties in the conduct of their foreign affairs and could likely be relied on together with the UN Charter. The Charter, however, by virtue of its article 103, would take precedence.
Having been subjected to an armed attack, Ukraine is entitled to react in self-defense and to seek the assistance of other States to assist in its self-defense. Ukraine may take all proportional actions to repel Russia’s attack. If Ukraine’s “survival is at stake” then perhaps even using nuclear weapons may be deployed in accordance with article 51 of the Charter of the United Nations and the interpretation of the International Court of Justice in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (para. 96). This would be another situation like Libya, Afghanistan, and Iraq when the use of nuclear weapons might be allowed by international law, but in this instance, unlike the other instances when the existence of a State was at stake, the State subjected to an armed attack may actually have access to nuclear weapons through several of its allies.
Having committed an internationally wrongful act of using force contrary to its obligations to refrain from doing so that are established in article 2, paragraph 4, of the Charter of the United Nations, Russia can be subject to consequences. The consequences for such an internationally wrongful act require that Russia end its acts of aggression, withdraw from the Ukraine and make restitution or compensation for the damage that it has caused.
Possible justifications for the use of force
International law allows a State whose actions appear to violate international to invoke justifications if they can be supported by appropriate factual and legal arguments. Russia has expressed several justifications that could prevent consequences for its otherwise unlawful actions.
Russia has stated that it was recognizing Donetsk and Luhansk as independent sovereign States because the citizens of these States were being denied respect for their basic human rights within Ukraine. In other words, Russia is claiming that its use of force is to secure the right to self-determination of Donetsk and Luhansk. Indeed, UN General Assembly precedents provide that States may use—may even be required to use—force to protect the right to self-determination of a people being deprived of this right. UNGA Resolution 2105(XX) (1965) “[r]ecognizes the legitimacy of the struggle by the peoples under colonial rule to exercise their right to self-determination and independence and invites all States to provide material and moral assistance to the national liberation movements in colonial territories.” UNGA Resolution 2708(XXV) (1970) further recognizes “the legitimacy of the struggle of colonial peoples and peoples under alien domination to exercise their right to self-determination and independence by all means at their disposal.” And the UN General Assembly’s Declaration on the Principles of International Law known also as the Declaration on Friendly Relations or UNGA Resolution 2625(XXV) (1970), which was adopted unanimously, recognized that “[e]very State has the duty to refrain from any forcible action which deprives people referred to above in the elaboration of the present principle of their right to self-determination and freedom and independence. In their actions against, and resistance to, such forcible action in pursuit of exercise of their right to self-determination, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter.”
To rely on this justification Russia would have to prove that the people of Donetsk and Luhansk are peoples entitled to self-determination. Moreover, in light of the presumption created by the principle of uti possidetis, a principle of colonial origins, the authorities of Donetsk and Luhansk as well as Russia would likely have to prove that these two new States could not have achieved respect for the basic human rights of their citizens within Ukraine. To this end, Russia may point to the ongoing hostilities that have subjected the people of Donetsk and Luhansk to a de facto armed conflict for several years. More than 16,000 people have been killed and almost 1.5 million displaced in Donetsk and Luhansk. Russia would also undoubtedly also want to show that the regions of Donetsk and Luhansk have met the criteria in the Montevideo Convention on the Rights and Duties of States (1933), which reflect customary international law, that require an entity seeking to be a State to have a defined territory. These four criteria are a defined territory, a permanent population, a government with control over that population, and the capacity to enter into foreign relations. Donetsk and Luhansk probably meet these criteria.
If Russia was to rely on the justification of supporting the self-determination of the people of Donetsk and Luhansk, it would also have to justify its actions as being necessary for this purpose.
Russia also appears to rely on collective self-defense on behalf of Donetsk and Luhansk claiming that these newly recognized States had requested Russia’s intervention to protect themselves from Ukraine. Whether the ongoing hostilities between these two breakaway regions and Ukraine would constitute an armed attack is not at all clear. Moreover, to rely on collective self-defense Russia would have to prove that an armed attack against Donetsk and Luhansk had taken place according to the International Court of Justice in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (1986) (paras. 51, 193-195, and 211). Relying on collective self-defense would seem to be difficult in the circumstances.
While numerous commentators claim that Russia was forced into the war due to the buildup of NATO pressure in bordering States and the failure of NATO to recognize Russian security concerns, this claim does not eliminate the need for an armed attack. There is, however, precedent from the Carolina incident (1837) between the United States and Great Britain. In this case, the two countries appeared to agree that the United States could be justified in attacking British vessels that were attacking the United States from Canada if the need for self-defense was “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”
International humanitarian law
International humanitarian law or the laws of war governing the conduct of States involved in an armed conflict apply whether or not a State’s use of force is legal or illegal in the first instance. These rules can be found perhaps most easily in the four Geneva Conventions adopted in 1949 after World War II. Like the Pact of Paris, they were ratified by both Ukraine and Russia. Ukraine has also ratified the First Protocol from 1977, which provides even more specific rules for international armed conflicts, but Russia, which ratified the First Protocol in 1989 and reaffirmed its continued application after the breakup of the Soviet Union in 1992, although in 2019 it withdrew its consent to the article 90 International Fact-Finding Commission that could be conducted under the First Protocol. Ukraine has made a declaration under article 90 accepting fact-finding, but article 90(2)(d) requires Russia to consent to fact-finding for it to take place. The International Committee of the Red Cross is perhaps the best, although not the only, humanitarian organization that can verify the warring parties’ compliance with international humanitarian law.
Because the most important provisions of international humanitarian law have been recognized as customary international law they therefore apply to the armies of Donetsk and Luhansk, if these entities are considered States.
One of the basic rules of international humanitarian law is that civilians and civilian objects must not be attacked. This is a rule of customary international law. Both Ukraine and Russia have accepted the rules of customary international law protecting civilians. Ukraine has incorporated it into its 2004 International Humanitarian Law Manuel in Sections 1.3.2, 1.4.16, and 188.8.131.52. Russia’s Military Manual from 1990 prohibits “attacks against the civilian population or against individual civilians” and its Regulations on the Application of International Humanitarian Law from 2001 states: “The civilian population as such and individual civilians enjoy protection which, in addition to other international humanitarian law rules, prohibits making them an object of attack.” Attacks targeting schools or hospitals would violate this rule of law, attacks that kill or injure civilians, but were not targeting them would also violate this rule of law if adequate precautions were not taken.
Reports of hospitals being attacked or even suffering as collateral damage to nearby attacks as well as civilians being killed in Ukraine, if proven, could create State responsibility for the State carrying out these actions. They would constitute internationally wrongful acts that entail consequences. Russia’s statement that captured Ukrainian soldiers should be treated with respect is consistent with international humanitarian law, especially the third Geneva Convention relative to the Treatment of Prisoners of War, which Russia has ratified. Of course, action, not merely words is what counts, so Russia will have to respect this statement in practice.
Not only are some acts prohibited, State Parties to the four Geneva Conventions must take positive action to address them. It is noteworthy that, for example, article 146 of the Fourth Geneva Convention relative to the Protection of Civilian Persons in time of War requires Ukraine and Russia to “search for persons alleged to have committed, or to have ordered to be committed” grave breaches, and to prosecute “such persons, regardless of their nationality, before its own courts” or another State Party’s courts if it prefers. Grave breaches are defined in article 146 of this treaty as “wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial…, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” Moreover, each State must take the necessary measures to end and prevent all acts contrary to any of the provisions of the four Geneva Conventions.
International criminal law
International criminal law provides for the punishment of individuals involved in committing genocide, crimes against humanity or war crimes within the territory of Ukraine. In a Statement on 25 February 2022, International Criminal Court Prosecutor Karim A.A. Khan stated that he is considering investigating any crime committed after 20 February 2014 on the territory of Ukraine. This would include not only the perpetrators of the acts constituting the crimes themselves, but any “person who commits such crimes, including by ordering, inciting, or contributing in another manner to the commission of these crimes,” according to the Prosecutor’s statement.
Although neither Ukraine nor Russia have ratified the Statute of the International Criminal Court from 1998, Ukraine made a Declaration on 8 September 2015 accepting the jurisdiction of the Court for any crime committed after 20 February 2014.
It is noteworthy, that because neither Ukraine nor Russia have ratified the Statute of the International Criminal Court, the ICC Prosecutor, as he stated in his 25 February 2022 Statement, will not investigate the crime of aggression which was added to the Statute in 2018. For the Court to have jurisdiction over the crime of aggression a State must ratify the Court’s Statute.
No government official, including heads of States and members of the judiciary are immune from prosecution before the International Criminal Court, if it has jurisdiction. Thus, Russians and Ukrainians, including the highest-ranking officials in each country, can be prosecuted for international crimes.
The bigger picture
While international law certainly has much to say about the current situation in Ukraine, so too does international politics. Both law and politics combine to provide for and enforce the rules by which the international community functions. When the rules of international law that have been agreed to through complex political processes are observed that re-enforces them and makes it likely that they will be applied in the future. However, when those rules are repeatedly disrespected then an international community based on the rule of international law will begin to disintegrate.
Herein lies the problem with the bigger picture. Over the past fifty years, the United States and its allies have been the greatest offenders of the prohibition of the use of force. Sometimes they just ignored the rule altogether, other times they merely lied or created false facts to create the impression that they had a justification. The United States has repeatedly used force without legal justification in Afghanistan, Iraq, Syria, Libya, Palestine, Somalia, Yemen, Kosovo, Panama, Grenada, Haiti, Lebanon, Cambodia, Vietnam, Cuba, and Laos. Its allies particularly Israel and NATO regularly use force in violation of the prohibition of the use of force under international law. They may, and probably do, believe the use of force is justified based on some sort of modern ‘just war’ theory. In reality it is merely a violation of international law.
Other States observing the United States and it allies are being provided the lesson that the prohibition of the use of force against another State is meaningless. This lesson has been repeated over and over again as aggression initiated or assisted by the United States and its allies killed literally millions of Afghanis, Iraqis, Libyans, Palestinians, Syrians, Somalis, Yeminis, Serbians, Panamanians Haitians, Lebanese, Cambodians, Vietnamese, Dominicans, Cubans, Laotians, since the end of World War II.
It is in light of the United States and its allies’ poor examples that other States as they develop are likely to turn to the use of force in their foreign relations.
At the same time, the United States has been the motivating force in weaking our international institutions. The United Nations, the primary international organization concerned with preventing the use of force or war has failed miserably in recent years. One reason is that it has been repeatedly abused by the United States circumventing its procedures or blatantly misusing it as part of efforts to justify unlawful uses of force. To be able to use the UN in this fashion, the United States needs to ensure weak leadership of the United Nations and a Security Council that cannot act effectively. Thus, while Russia has supported reforming the ineffective Security Council—the principal UN body concerned with international peace and security—the US has generally opposed it. Moreover, the United States was a significant supporter of former Portuguese Prime Minister and UN Secretary-General Antonio Guterres. The Secretary-General stated at the beginning of his first term in January 2017 that he would prioritize issues of peace and security. To date Guterres has virtually no achievement in the realm of peace and security to show as he starts his second five-year term.
In this situation, it is unlikely that restoring respect for international law can start with the Ukraine-Russia conflict. It must go back much further to show that the rule of law is not merely being weaponized by the greatest purveyors of aggression in a hypocritical manner that weakens, rather than strengthens, respect for the rule of international law.
For a start the United States and its allies should admit their unlawful acts and compensate the victims in Afghanistan, Iraq, Syria, Libya, Palestine, Somalia, Yemen, Kosovo, Panama, Grenada, Haiti, Lebanon, Cambodia, Vietnam, Cuba, and Laos. To show respect for the rule of international law, the United States and all its allies should join the International Criminal Court and expose the international criminals among its nationals, some of whom have held senior positions government, to prosecution by the Court by special agreement or prosecute them in their own courts. If the United States and its allies acted in this way countries other countries would be much more inclined to comply with international law. This would immeasurably promote the rule of international law. Continuing to argue that the rules of international law apply to others, without applying these rules to themselves, only serves to weaken the rule of international law. One might suspect that most people in the world expect and deserve more from the leading governments of world.
Dr. Curtis F.J. Doebbler is Research Professor of Law at the University of Makeni in Sierra Leone. His twelve books include Dictionary of Public International Law (Rowland Littlefield, 2018). He is a practicing international human rights lawyer and proprietor of The Law Office of Dr Curtis FJ Doebbler, which has offices in San Antonio, Texas, and Washington, D.C. in the United States of America. He has more than thirty years experience practicing international law, including advising and representing individuals, heads of States, non-governmental organizations, and governments.