Russia’s invasion of Ukraine: an international law perspective
BY DR ALISON PERT - APR 08, 2022 9:00 AM AEST
Snapshot
- While Russia’s military operation in Ukraine is almost universally condemned as an unambiguously unlawful act of aggression, the conflict raises an unusual number of issues of international law.
- In the proceedings in the International Court of Justice, Russia denied using alleged genocide as a justification for its operations, asserting that it was acting in self-defence. Consideration is given to the possible justifications for the invasion, in light of the rules on self-defence.
- Media reports suggest several breaches of the laws of war have occurred, particularly by Russia.
On 24 February 2022, eight years after seizing Crimea, Russia began a ‘special military operation’ in Ukraine with the apparent aim of acquiring the whole of Ukraine and (re-)absorbing it into the Russian Federation. While almost universally condemned as an unambiguously unlawful act of aggression, the conflict raises an unusual number of issues of international law. This article outlines just some of those issues, including the various justifications claimed by Vladimir Putin, issues of secession, statehood and recognition, the conduct of hostilities, and the participation of foreign fighters.
Ukraine has a long and complicated history but a few points should be noted here. In the middle ages Kiev was at the heart of ‘Kievan Rus’, a federation that included parts of present-day Russia and Belarus, and which is regarded as a key part of their common cultural heritage.
[1] Ukraine became part of the Russian Empire and later the USSR, becoming independent in 1991. Its eastern region of Donbas has long had a predominantly Russian-speaking population; when Russia invaded Crimea in 2014, pro-Russian separatist groups in Donbas declared the independence of the Donetsk and Luhansk People’s Republics (DPR and LPR), and with Russian military support have been fighting the Ukraine government ever since. Three days before the 2022 invasion, Putin recognised the two Republics as independent states.
A. The use of force
The use of force – prohibited aggression
As is well-known, the use of armed force is prohibited by art. 2(4) of the United Nations Charter and customary international law, except in lawful self-defence, or when authorised by the UN Security Council.
[2] There was clearly no Security Council authorisation here so the focus is on self-defence, considered below. But Putin initially justified the action on another ground – the prevention of genocide.
The prevention of genocide
On several occasions in February 2022, Putin and his ministers accused Ukraine of committing genocide in Donbas, and declared that Russia’s military action was necessary to protect the population there.
[3] Ukraine is challenging this in the International Court of Justice, arguing that under the Genocide Convention, a false allegation of genocide provides no lawful excuse for Russia’s actions.
[4] On 16 March 2022, the ICJ found this argument ‘plausible’ for the purposes of indicating provisional measures, ordering Russia to suspend its operation.
[5] It is far too early to tell how the Court will rule on the merits of the case, but as it noted:
‘it is doubtful that the Convention, in light of its object and purpose, authorizes a Contracting Party’s unilateral use of force in the territory of another State for the purpose of preventing or punishing an alleged genocide.’
[6]
Although Russia refused to take part in the ICJ hearing, it sent a written submission to the Court in which it denied using alleged genocide as a justification for its operations, asserting instead that it was acting in self-defence.
[7] This claim has several aspects, described below.
Self-defence – the basic rules
It is well settled that for a state to use force lawfully in self-defence, it (or another state which has sought its assistance) must have been the victim of an armed attack, and it can only respond with such force as is necessary and proportionate.
[8] It must also report its actions to the UN Security Council,
[9] which Russia did on 24 February.
[10] However, it is unclear what exactly Russia is claiming. Its letter to the Security Council refers to an attached speech by Putin, which obliquely raises three possible justifications: defence of Russia itself, defence of the DPR and LPR, and defence of Russian nationals in Ukraine.
[11]
Defence of Russia itself – pre-emptive self-defence
There is an unresolved debate about whether the armed attack, necessary to enliven the right of self-defence, must be in progress or at least have recently occurred, or whether a state can act in anticipatory self-defence when an armed attack is imminent. There has clearly been no actual or threatened armed attack by Ukraine against Russia, and Putin does not claim that an attack is imminent. Several passages in his speech suggest he is claiming to act in ‘pre-emptive’ self-defence – action to prevent an attack which is not imminent and indeed may never occur – in response to the threat posed by NATO’s expansion into territories bordering on Russia.
[12]
Although practised by Israel and the United States, pre-emptive self-defence is not considered lawful because of its potential for abuse and escalation of the conflict, and because the key requirements of necessity and proportionality of the response cannot be measured.
[13] It is not compatible with the wording of art. 51 of the UN Charter and its customary equivalent, which set out the requirements for lawful self-defence, and there is no evidence that a new rule of customary international law, permitting pre-emptive self-defence, has developed. This claim of defence of Russia therefore has no legal basis.
Defence of DPR and LPR – collective self-defence
Collective self-defence – defending another state – is lawful if the other state is the victim of an armed attack and requests assistance.
[14] Putin is claiming that the DPR and LPR have been attacked by Ukraine and have requested assistance from Russia.
[15] Russia’s recognition of the two entities as independent states on 21 February was clearly designed to support this claim. However, only one other state appears to have formally recognised the putative republics, which continue to be regarded by the rest of the international community as part of Ukraine.
[16]
Defence of Russian nationals in Ukraine – protection of nationals abroad
Putin also seems to be making a wider claim that Russia is acting to protect all ‘Russians’ in Ukraine, whether in the so-called DPR and LPR or not.
[17] ‘Russians’ in this context include not only Russian nationals but all those of Russian ethnicity, who form a substantial minority in eastern Ukraine.
[18] In the 19th century, the forcible protection by a state of its nationals abroad was commonplace and accepted, but few jurists argue that its legality survived the restrictions placed on the use of force by the UN Charter.
[19] Others view it as one aspect of self-defence, where the object of the armed attack is not the territory of the victim state but its nationals abroad, but there is no settled position.
[20] And even on this view, to be lawful, Russia would have to show that there had been an armed attack by Ukraine; given that the attacks alleged by Russia are in response to an insurgency and a continuing civil war, that might be difficult to establish. In addition, it could only apply to attacks on Russian nationals – there is no support for the view that it could justify defence of anyone who was ethnically Russian.
[21]
Necessity and proportionality
If there has been no armed attack, then the question of necessity and proportionality of the response does not arise. But putting the Russian case at its highest – that the DPR and LPR have been attacked – then a response which has Russia bombarding cities far from those areas, and engaging in a full-scale ground invasion, is clearly disproportionate.
[22]
Russia’s irredentist claims
This leads to yet another implied justification for Russia’s actions – an irredentist claim to restore Russia to its former glory by reclaiming Ukraine and other territories populated by ethnic Russians.
[23] Putin is on record as decrying the collapse of the Soviet Union and the loss of Soviet territories including Ukraine, which he says was historically Russian.
[24] He seems to be asserting that this, and his claim that Russia and Ukraine are one people, somehow give Russia the legal right to use force to ‘reclaim’ its lost territories. There is no basis in international law for such an argument. Ukraine is a sovereign state, and one of the principal attributes of sovereignty is the right to enjoy territorial integrity and political independence.
Intervention by invitation
If the DPR and LPR are not states, it might be argued that their representatives (pro-Russian separatists) could nevertheless invite Russia’s assistance in the insurgency. However, in such a case the separatists would be characterised as insurgents against the Ukrainian state, and the ICJ has firmly dismissed any suggestion that an opposition movement could lawfully invite outside military assistance.
[25]
B. Russia’s recognition of DPR and LPR
Remedial secession
Russia’s recognition of the two republics as independent states raises other issues of international law. As a general rule, states are free to recognise or not recognise a new state.
[26] But where, as here, the putative state is formed through secession from a parent state (Ukraine), without that state’s consent, then recognition may be a violation of Ukraine’s sovereignty.
[27] The legality of secession in international law is hotly contested, but even those states that admit the possibility tend to confine it to exceptional cases of ‘remedial’ secession, where an identifiable people has been subjected to appalling treatment by the parent state.
[28] Putin seems to be claiming that the Russian-speaking population of Donbas is a ‘people’ entitled to self-determination and to remedial secession because of, for example, the alleged genocide against it committed by Ukraine.
[29] But all the available evidence suggests that the conditions for remedial secession, assuming it exists, are not met in eastern Ukraine.
Statehood
Even if entitled to secede, an entity must meet certain criteria in order to constitute a state in international law. The minimum, ‘Montevideo’ criteria are that it must have a permanent population, a territory, an effective government, and independence.
[30] The DPR and LPR may have a population and a defined territory, but their self-declared governments do not control the whole of that territory and they are so heavily supported by Russia that they could not be said to be independent.
[31]
A further condition for statehood is that the state must not have been created in violation of international law – notably a
jus cogens norm such as the prohibition of aggression. This is complemented by a duty on all states not to recognise the result of a
jus cogens violation,
[32] as illustrated by the UN General Assembly’s call on member states not to recognise as lawful Russia’s seizure of Crimea in 2014.
[33] Russia’s documented military support of the separatists in the Donbas region since 2014
[34] would most likely also qualify as an unlawful use of force against Ukraine, precluding international recognition of DPR and LPR as new states.
C. The conduct of the hostilities
The law of armed conflict/international humanitarian law (‘IHL’)
The situation in Ukraine is clearly an international armed conflict, possibly with a parallel non-international armed conflict between separatist and Ukrainian government forces
[35] continuing in the east.
[36] Russia and Ukraine are parties to nearly all the major treaties on the laws of war;
[37] media reports suggest that several breaches of these have occurred, particularly by Russia.
(a)
The intentional targeting of civilians and civilian objects:[38] the destruction of so many residential buildings, and civilian objects such as theatres and schools, suggests that many of these (Russian) attacks were deliberate and prohibited in IHL. Russia has at times claimed that a civilian building was being used by Ukrainian forces; if true, Russia would need to show that the damage to civilians and civilian objects would not be excessive in relation to the military advantage gained by attacking the building.
[39] Intentionally targeting cultural or medical facilities is similarly prohibited.
[40] The evidence currently emerging as Ukrainian forces retake previously occupied areas suggests that Russia has targeted and executed unarmed civilians.
(b)
Indiscriminate attacks: Russia’s apparent use
[41] of ‘dumb bombs’ – bombs which lack precision guidance systems – may constitute indiscriminate attacks, which are prohibited.
[42] Similarly its rumoured use of cluster bombs:
[43] even though Russia is not a party to the treaty banning cluster munitions,
[44] their effect in civilian areas could be indiscriminate.
(c)
Thermobaric bombs and white phosphorus: neither of these is expressly prohibited. Thermobaric munitions, or ‘vacuum bombs’, are particularly destructive; they first disperse a flammable (and toxic) aerosol which is then ignited to produce a huge blast that sucks up the surrounding oxygen, creating a vacuum and obliterating or causing horrendous injuries to all those in the vicinity.
[45] Despite this, their use is not
per se unlawful, although it has been argued that they fall foul of the IHL restrictions or prohibitions on incendiary and chemical weapons, and on causing unnecessary suffering.
[46] White phosphorus can be used to illuminate targets and create smoke screens, but causes extensive burns and poisoning if it comes into contact with human skin. Because of this, some states prohibit its anti-personnel use,
[47] but its use is otherwise limited only by the general rules of IHL.
[48]
(d)
Chemical, biological and nuclear weapons: the US says that Russia is contemplating the deployment of chemical and nuclear weapons in Ukraine.
[49] Russia is a party to the Conventions prohibiting chemical and biological weapons,
[50] but not the Treaty on the Prohibition of Nuclear Weapons 2017.
(e)
Mistreatment of prisoners-of-war: Ukraine has broadcast humiliating footage of captured young Russian soldiers,
[51] and allegedly deliberately injured Russian prisoners-of-war,
[52] in violation of the Third Geneva Convention 1949.
[53]
Possible war crimes
Although there is no uniform definition or list of ‘war crimes’, a widely accepted view is that a war crime is a serious breach of the laws and customs of war entailing individual criminal responsibility. They can be prosecuted in domestic courts if the relevant state has established the necessary jurisdiction, or in an international court or tribunal. Already 41 states (including Australia) have referred the situation in Ukraine to the International Criminal Court (‘
ICC’), where the Prosecutor has opened an investigation.
[54] Neither Russia nor Ukraine is a party to the Rome Statute establishing the ICC,
[55] but the Court has jurisdiction because Ukraine has accepted that jurisdiction over all acts on its territory since early 2014.
[56]
The Rome Statute contains a list of war crimes covering most of the above violations of IHL,
[57] but it does not expressly include indiscriminate attacks or weapons,
[58] or the use of chemical, biological and nuclear weapons.
[59] A special tribunal established to prosecute war crimes
[60] from the conflict might be able to overcome this, if the crimes within its jurisdiction could be drafted carefully enough to avoid breaching the
nullum crimen sine lege principle.
[61] As Supreme Commander-in-Chief, Putin himself could be prosecuted if he ordered these violations, or failed to prevent acts he knew or ought to have known were occurring.
[62] He could not be prosecuted at the ICC for the crime of aggression,
[63] but a special tribunal might be given that jurisdiction.
Status of participants in the conflict
The distinction between civilians and combatants is fundamental to IHL. Combatants can be lawfully targeted, at any time – civilians cannot. Provided that they comply with IHL, combatants cannot be prosecuted for their actions during the conflict, whereas civilians can. Civilians who take a direct part in the hostilities have the worst of both worlds: they can be lawfully targeted but have none of the combatant’s privileges such as POW status if captured, or immunity for their acts.
[64] The distinction between combatant and civilian becomes blurred in some situations.
Levée en masse
First, as the Russian invasion began, there were reports of Ukrainian civilians arming themselves to repel the invaders.
[65] IHL recognises that civilians who spontaneously take up arms on the approach of an enemy, without having time to organise themselves into a regular armed unit (a ‘
levée en masse’), are entitled to POW status if captured – provided they carry their arms openly and adhere to IHL.
[66] Many hurriedly-formed volunteer groups in Ukraine would have had this status, and others might too as ground troops approach other parts of the country. However, as the invasion progresses, this temporary protection is likely to cease; the Ukrainian government is actively calling on citizens to resist with force, and providing weapons and rudimentary training, so any action is no longer ‘spontaneous’.
Volunteer corps
Secondly, civilians who answer the government’s call and take up arms will be regarded as lawful combatants if they join Ukraine’s armed forces (obviously), or militia or volunteer corps that are part of the armed forces, or if they join ‘other militias and … volunteer corps, including … organized resistance movements.’
[67]
Ukraine’s newly formed ‘Territorial Defence Force’ (‘
TDF’) would satisfy the criteria for the former category – a militia or volunteer force forming part of the state’s armed forces.
[68] The latter category, including an organised resistance movement, has further requirements: the members must be under responsible command, wear a distinctive sign (such as the yellow arm band of the TDF),
[69] carry their arms openly, and obey the laws of war.
[70] Only if all four conditions are satisfied will the members be entitled to combatant status.
Direct participation in hostilities
Third and as mentioned earlier, in all other cases, a civilian loses their protection if and for as long as they take a direct part in the hostilities.
[71] This has proved fiendishly difficult to define, but a simple example would be a civilian driving a military truck carrying ammunition to the front line.
[72] Ukrainian civilians wishing to help the war effort therefore need to be mindful of the (very indistinct) line between assistance and direct participation.
Mercenaries and foreign fighters
The conflict is attracting many mercenaries and foreigners, on both sides.
[73] For ‘foreign fighters’ to benefit from the combatant’s privilege, they must fall within the categories listed above. For many, that should cause little difficulty as Ukraine is permitting foreign nationals to join the TDF
[74] and even its armed forces.
[75] Others however must fall within the requirements of an organised resistance movement, or risk being regarded as unlawful combatants. Russia has warned that it will treat any foreign fighter in Ukraine as a mercenary and unlawful combatant.
[76]
As to mercenaries, both states are party to Additional Protocol I which expressly denies mercenaries the right to POW status if captured.
[77] It defines a mercenary as someone who is specially recruited to fight in the conflict, financially motivated, paid substantially more than their peers in the recruiting state’s armed forces, and not a national, resident or member of the armed forces of either party.
[78] Few foreign fighters would be caught by this definition because of the requirement of financial motivation.
D. State responsibility
If it is accepted that the invasion is unlawful, Russia’s international legal responsibility is engaged. In international law it is under a duty to cease the wrongful conduct and make reparation to Ukraine, and orders to this effect are being sought by Ukraine in its ICJ claim described above. In an unusually compressed timetable, the first round of pleadings will be complete in 12 months (Ukraine asked for 3) so we may have a result, at least on the preliminary question of whether the Court has jurisdiction, by mid-2023.
An interesting related question is the responsibility of Belarus for facilitating the invasion, for example by enabling Russian troops to invade northern Ukraine from Belarus territory.
[79] Under customary international law, it is unlawful for a state to knowingly assist another state to commit an internationally wrongful act.
[80] There is no obvious jurisdictional basis for any claim against Belarus that Ukraine might want to make before the ICJ, as states must expressly agree, somewhere, to have the case heard by the Court. But Ukraine faced the same difficulty with its claim against Russia. It overcame that difficulty, at least for the time being, by framing its complaint as a violation by Russia of the Genocide Convention – and disputes under the Convention can be heard by the ICJ. Whether that imaginative route to jurisdiction is ultimately successful will not be known until the Court’s ruling on jurisdiction and admissibility some time in 2023.
Dr Alison Pert lectures in public international law, international law and the use of armed force, and international humanitarian law at the University of Sydney.
[4] Ibid.[6] Ibid. para. 59.[9] UN Charter art. 51.[10] UN Doc. S/2022/154[12] Ibid. p.6.[13] See eg Ashley Deeks, ‘Taming the Doctrine of Pre-emption’ in Marc Weller, Oxford Handbook of the Use of Force in International Law, (OUP 2015) p. 661.[14] UN Charter art. 51, Nicaragua para. 232.[15] UN Doc. S/2022/154 p.6.[18] Ian Bremmer, ‘The Politics of Ethnicity: Russians in the New Ukraine’ (1994) 46(2) Europe-Asia Studies 261.[19] Gray, International Law and the Use of Force (4th ed. OUP 201 pp. 165-169.[21] Ibid. p. 169.[22] See eg Armed Activities, para. 147.[23] Vladimir Putin, ‘On the Historical Unity of Russians and Ukrainians’, 12 July 2021, http://en.kremlin.ru/misc/66182[25] Nicaragua, para. 246.[26] James Crawford, Brownlie’s Principles of International Law (9th ed., OUP 2019), p.138.[27] Malcolm Shaw, International Law (9th ed., CUP 2021), p. 392.[40] Ibid., arts. 12, 53.[48] Gary Solis, The Law of Armed Conflict (3rd ed, CUP 2021) pp. 606-608.[58] Rome Statute art. 8(2)(b)(xx) refers to these but only applies once the crimes have been included in an annex to the Statute, which has not yet occurred.[61] For example, the ICJ has stated that the use of nuclear weapons is not per se unlawful (https://www.icj-cij.org/public/files/case-related/95/095-19960708-ADV-01-00-EN.pdf), so the crime would have to focus on, eg, the inherently indiscriminate nature of the weapon.[62] See eg Emily Crawford and Alison Pert, International Humanitarian Law (2nd ed. CUP 2020) pp. 284-287.[63] Akande and Tzanakopoulos, ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’ (201 29(3) EJIL 939.[67] Ibid. art. 4A(1) and (2).[70] GC III art. 4A(2).[72] See eg Gary Solis, The Law of Armed Conflict (3rd ed. CUP 2021), pp. 190-193.[78] art. 47(2). |
