Posted 03/03/2022 by Dr Shannon Maree Torrens
The past week has seen significant challenges to the peace and security of Europe with Russia escalating its invasion of Ukraine. The Russian invasion of Ukraine is a violation of international law and has been condemned as such by world leaders, the United Nations and NATO.
The Russia-Ukraine border was already violated by Russia in 2014 with the invasion and occupation of Crimea. NATO Secretary General Jens Stoltenberg has said: ‘What we see now is that a country which is already invaded is suffering further invasion.’
States and commentators on all sides have drawn heavily on the language of international law in relation to the situation in Ukraine, including Russia’s claims of ‘genocide’ and ‘peacekeeping’ to condemnations of ‘flagrant violations of international law’, and allegations of international crimes.
This post provides background on the international legal basis of these issues.
The invasion as a violation of international law
Russia and Ukraine are both sovereign states and members of the United Nations and Article 2(4) of the UN Charter prohibits the threat or use of force by member states. The UN Charter notes 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.’
There are only a couple of exceptions to the prohibition on the use of force.
Article 51 of the UN Charter outlines that self-defence is an exception to the prohibition against the use of force, noting: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.’
Ukraine therefore has the right to self-defence.
Collective self-defence is also an option pursuant to Article 51 and while it is disputed, states arguably also have a right to anticipatory self-defence under customary international law when faced with an imminent attack.
How does international law want conflict settled? Chapter VI, Article 33(1) of the UN Charter states that parties to a dispute ‘likely to endanger the maintenance of international peace and security’ should firstly seek a peaceful solution such as through mediation, negotiation, or conciliation.
A natural extension of this general prohibition is that it is unlawful to acquire territory by force — a principle of international law affirmed by the UN Security Council.
What does Russia say?
Russia’s public statements are not directly framed in terms of international law, but implicitly use the language of international law. Putin justified his invasion of eastern Ukraine by arguing that he is ‘protecting’ Russian-speaking people in the Donbas region from genocide.
Article 2 of the UN Genocide Convention defines genocide as ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. Critics have responded that there is no evidence to suggest that there is a genocide of Russian-speaking people in the Donbas region and that the genocide claim is being misused by Putin as a political tool to justify the military invasion.
Putin’s language is similar to (although not directly referencing) the responsibility to protect (R2P), which is an international principle adopted by the UN World Summit in 2005 and seeks to protect populations from genocide, war crimes, crimes against humanity and ethnic cleansing. R2P is not a legally binding framework, but it is based on existing international law.
Under this principle, states have the primary responsibility to protect their own population; the international community has a responsibility to assist states in protecting their populations, but the international community has a responsibility to protect when a state is manifestly failing to protect its population.
Former Australian Foreign Minister Gareth Evans has argued that Russia used R2P as a justification in a subversive way for the purposes of military intervention in relation to its armed intervention in Georgia. It is arguable that Putin is using this principle, or at least using language akin to this principle, to legitimise territorial gain rather than genuinely trying to protect people in Ukraine from grave crimes.
For Russia to make the argument that the R2P norm is applicable to this situation, it would need to make a strong case that the threat to the Russian-speaking people in eastern Ukraine justified military force, which would need to be endorsed by UN Security Council approval of collective military force. There was no effort by Russia to seek that approval.
‘Peacekeeping forces’
Putin initially ordered Russian forces into eastern Ukraine to ‘perform peacekeeping functions’. Russia did so pursuant to the recognition of the two breakaway regions and the creation of treaties with them, which was intended to provide a legal basis for these ‘states’ to ‘invite’ Russian forces into the regions.
The application of concepts of peacekeeping is problematic. Countries cannot unilaterally establish peacekeeping forces in other countries without that country’s consent (Article 2(4) of the UN Charter). In the Ukraine situation, Russia would therefore have to ask the Ukrainian government for its consent to send in peacekeepers to eastern Ukraine if they wanted to do so.
In response to Russia’s use of the terminology of ‘peacekeepers’, UN Secretary-General António Guterres has said he is ‘concerned about the perversion of the concept of peacekeeping … When troops of one country enter the territory of another country without its consent, they are not impartial peacekeepers. They are not peacekeepers at all.’
In line with the UN Security Council’s responsibility to maintain international peace and security the Council can establish a mandate for a UN peace operation with the consent of the host-state government and other main parties to a conflict. Consent is a key element of UN peacekeeping. The UN Security Council can also authorise peacekeeping operations led by regional arrangements such as the European Union Force in Bosnia and Herzegovina, and the African Union in Somalia.
Self-determination
Could Donbas exercise a right to self-determination to separate from Ukraine? Article 1(2) of the UN Charter states that the purposes of the UN include: ‘To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.’ The right to self-determination is also outlined in Article 1 of both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR) which state: ‘All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.’
However, self-determination is limited by the principle of the territorial integrity of states and only in extreme instances of oppression can secession and the formation of a new state be justified. Russia’s recognition of these states did not change their status as Ukrainian territory.