Rejecting the justification of Russia’s international law

Despite the spin offered by international relations experts on the Russia-Ukraine crisis, the clear truth remains. The Russian invasion of Ukraine is a brutal murder of the United Nations (UN) Charter and many other principles of international law. Ironically, Russian President Vladimir Putin has invoked international law to justify Moscow’s bare-faced illegal actions. But these justifications are wrong.

recognition of territories

Three days before a full-scale invasion of Ukraine, Russia recognized the supposedly independent regions of Donetsk and Luhansk in eastern Ukraine and signed treaties of friendship with these entities, allowing Russian troops to advance as “peacekeepers”. The way was paved. In doing so, Russia appears to rely on the controversial principle of curative alienation, which in the most extreme cases entails the unilateral separation of a territory from the original state. However, international law does not recognize the general right to unilateral secession within the doctrine of self-determination, beyond the context of freedom from colonialism. Even if a debatable case can be made for curative segregation, it requires very high thresholds such as serious human rights violations and the systemic persecution of ethnic Russians by Ukraine. Russia’s claims of genocide of ethnic Russians are not supported by any evidence. Ukraine has approached the International Court of Justice over the alleged genocide. In any case, Ukraine explicitly agreed with Russia to recognize the autonomy of Donetsk and Luhansk under the Minsk Agreement, promising to protect the right of self-determination of these regions. Therefore, Russia’s claims have no basis in international law. In granting statehood to Donetsk and Luhansk, Russia violates Article 2(4) of the United Nations Charter by undermining the territorial integrity of Ukraine.

use of force

Russian illegality is not limited to this only. Russian missile attacks on non-military objects in Ukraine and Russian forces marching through Ukrainian soil are a brutal display of the use of force in international relations, which Article 2(4) of the United Nations Charter prohibits. Oddly, Mr. Putin claims he is acting in self-defense in accordance with Article 51 of the United Nations Charter. Article 51 recognizes the inherent right of individual or collective self-defense in case of armed attack by one State against another State. However, Ukraine has not launched an “armed attack” against Russia that has guaranteed defensive strikes. Furthermore, there was no ‘imminent’ threat from Ukraine that would have justified Russia’s actions even under the logical principle of advance self-defense in international law. The right of collective self-defense under Article 51 is only for the states. Donetsk and Luhansk are not states under international law. Furthermore, Ukraine did not attack these supposedly independent states. Even assuming that there exist legitimate grounds for self-defense, nothing in Article 51 or customary international law permits an unequivocal action in self-defense, such as a full-scale invasion of Ukraine.

Mr Putin’s abhorrent actions tantamount to committing the crime of aggression, as defined under the Rome Statute of the International Criminal Court (ICC). Article 8. Rome Statute in Twenty (2) defines an act of aggression to mean any use of force against the sovereignty, territorial integrity, or political independence of another State. Ideally, the aggressor state and its leaders should face international criminal responsibility for the aggression. However, the ICC is unable to exercise jurisdiction unless both the attacking and the aggrieved states are parties to the Rome Statute. With Russia and Ukraine not being parties, the likelihood of legal accountability for Russia’s actions is slim.

on ‘r2p’

Mr Putin also indirectly invoked the controversial principle of humanitarian intervention, also called the Responsibility for Security (R2P) in international law, for his actions in Ukraine. R2P stems from each state’s responsibility to protect its population from gross human rights violations, and the international community’s responsibility to assist states to meet such responsibility. Controversially, this doctrine has been extended by third states to justify the use of force on the territory of a state that has failed in its duty to protect its citizens. Such actions may or may not be authorized by the United Nations Security Council (UNSC); The 2011 military intervention in Libya received UN authorization, while the 1995 North Atlantic Treaty Organization bombing of Bosnian Serbs did not. However, the R2P principle remains disputed in international law. Even if it exists, there is no evidence that ethnic Russians in Ukraine are facing atrocities worthy of humanitarian intervention of the scale Russia-initiated. The irony of Russia applying the R2P doctrine to its Ukrainian offensive, criticizing the West for R2P in Libya and the former Yugoslavia in the same declaration, is lost in pride.

Russian revisionism

It would be pointless to look at the current crisis through the narrow lens of black letter law alone without uncovering the ideological underpinnings of Russia’s approach. The Kremlin believes that the world is divided into spheres of influence. Thus, one needs to differentiate between countries that are truly sovereign and countries that have nominal or limited sovereignty. Russia sees Ukraine as an entity with limited sovereignty. The global community must pay attention to Mr. Putin’s precarious game of reviving the ‘Russian Empire’, which could tear down the foundations on which the post-World War I regime-based international order has been painstakingly built. It is part of the Russian approach to international law which holds that the basis of international law is not universal but cultural and civilizational specificity.

Rooted in Russia’s cultural and civilizational exceptionalism is its emphasis on statisticism. Indeed, Putin’s Russia has doubled down on statisticism in international law by institutionalizing several mechanisms. For example, Russia has created a constitutional mechanism to condemn international human rights law, by empowering the Russian Constitutional Court to invalidate any decision by any human rights system (including the European Court of Human Rights), if they are found inconsistent with the Russian Constitution.

History tells us that humanity has been oppressed at the hands of over-masculine autocratic leaders who set out on the way to the greatness of a mythical civilization. The global community must collectively ensure that this does not get repeated. International law should be framed to check the arbitrary power of the state and to check imperialist designs. Or else the maintenance of a rules-based international order will remain a pipe dream.

Prabhas Ranjan teaches at OP Jindal Global University. Achyut Anil is an international law researcher based in New Delhi. views expressed are personal