By Ilan Fuchs, Ph.D.
Faculty Member, Legal Studies
One of my main fields of research is public international law; this area of law focuses on the legal relationship between nations. I teach it in various courses such as LSTD 507: International Law, LSTD 306: International Law and IRLS 402: International Law and Regimes. These courses are typically taken by our legal studies, international relations and political science students.
It is rare, however, when international law comes to the forefront of the news cycle as it has with the Russian invasion of Ukraine. Usually, international law lies just beneath the surface of an event, but in this case, it is at the core of unfolding events in Ukraine.
The Use of Force in International Law
The military operation that Russia started in Ukraine has violated the most common core of international law – to regulate and prevent war. After World War II, the major focus was on outlawing war.
According to the United Nations (UN) Charter, Article 4(2) states 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.”
This document is not the first attempt to achieve the goal of countries working out their problems in a peaceful manner. The League of Nations charter of 1919-1920 and the Kellogg-Briand Pact of 1928 were also attempts to ensure peace between nations, but failed miserably considering the magnitude of World War II.
Article 2(4) Has Been Constantly Examined by Scholars
The UN’s Article 2(4) has been the subject of many scholarly treatises analyzing every word in it. For instance, Article 2(4) has been used to discuss if using force during civil war or intervening in a rebellion is legitimate. One example would be the United Nations International Court of Justice’s (ICJ’s) decision about military and paramilitary activities in and against Nicaragua.
Article 2(4) was also referenced by the ICJ in an advisory opinion, “Legality of the Use by a State of Nuclear Weapons in Armed Conflict.”
In this case, however, we are dealing with the most central issue of Article 4(2): the use of force by one nation against another. Russia is not denying any of the basic facts: The Russian army used force against the territorial integrity and political independence of Ukraine.
There are two ways to consider the situation with Ukraine:
- Russia does not care about international law.
- The Russian government could claim that the use of force was legitimate in this case, based on the exceptions to Article 4(2).
Exceptions to the UN’s Article 4(2) Prohibition of the Use of Force
In the UN’s charter, there are two main exceptions to the prohibition to use force. First, the UN’s Security Council can sanction the use of force.
This rule is outlined in Article 39 of the charter: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” In the case of Ukraine, the Security Council did not sanction the use of military force.
The other exception is self-defense, which is outlined in Article 51 of the UN charter. Article 51 states that “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.”
However, Russia would not be able to use self-defense as justification for attacking Ukraine. Ukraine did not invade Russia first, and Russia would find it difficult to supply proof that Ukraine was the attacker.
Also, Ukraine never suggested an impending attack. This angle raises the questions of whether Russia has used anticipatory self-defense or preemptive self-defense, which are hotly debated topics in the legal studies field. Overall, Russia will not find legal justification for its actions.
Russia Could Argue ‘Humanitarian Intervention’ to Justify Invading Ukraine
To justify invading Ukraine, Russia will most likely call upon a doctrine that has been discussed in recent years: humanitarian intervention. In a scholarly article that I published in the past, I discussed the broader use of humanitarian intervention and its evolution.
The crux of the “humanitarian intervention” concept is that in a situation involving mass atrocities and human rights violations, humanitarian intervention is justified. In other words, a country can claim that to stop human rights violations from occurring, it is legitimate to exert force and override the local government’s political authority. My article also stated that some cases, the use of force is justified.
Humanitarian intervention, a much-debated concept, is what Russia is now claiming. Russian leaders have asserted that Ukraine was taken over by fascists and that Russia’s goal in invading Ukraine is to uproot these fascists from power.
In addition, Russia says the Ukrainian government is not a legitimate governing body. Instead, Russia claims that the Ukrainian government is a group of thugs and murderers, who do not have the legal protections assigned by international law to legitimate states.
Who Will Make the Decision about the Legality of Russia’s Arguments?
The question now is who will judge the efficacy of the Russian arguments. Ukraine has chosen two avenues to legally fight back against the Russia invasion.
The first is the UN’s International Court for Justice. A State Department press release noted, “Ukraine filed an application at the International Court of Justice (ICJ) to initiate proceedings against the Russian Federation under the Convention on the Prevention and Punishment of the Crime of Genocide. Ukraine seeks to address Russia’s groundless claims that genocide has occurred in the Luhansk and Donetsk oblasts of Ukraine and establish that Russia has no lawful basis to take military action on the basis of those false claims.
“Ukraine has also requested the ICJ exercise its authority to indicate provisional measures to preserve Ukraine’s rights and limit the ongoing and irreparable harm to the Ukrainian people as well as Ukraine’s sovereignty and territorial integrity within its internationally recognized borders.”
The second path that Ukraine is using involves the International Criminal Court (ICC). Ukraine has asked the ICC, based on a document called the Rome Statute of the International Criminal Court, to open an investigation concerning war crimes by Russia. The ICC prosecutor, Karim A.A. Khan, recently launched this investigation.
Will Russia Respect a Legal Decision from the ICJ or ICC?
The efficacy of any decisions made by these tribunals is a different matter. Will Russia respect a legal decision from the ICJ or the ICC? Will the UN’s Security Council act in response to a decision? These political questions will need to be discussed if and when a decision is made by the ICJ and/or the ICC.
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