This article is authored by Ahan Gadkari, Research Assistant to Dr. Aniruddha Rajput, Member, UN International Law Commission and Tushar Rajput, Research Intern at the Centre for Trade and Investment Law, Government of India.
DATE OF PUBLICATION-3/5/2022
On 24th February, the Russian Federation initiated a “special military operation” in Ukraine. This was a transparent violation of the prohibition on the use of force within customary international law and codified within Article 2(4) of the United Nations (UN) Charter. Further, it was also inconsistent with Clause 1 and 2 of the Budapest Memorandum on Security Assurances. The operation went into motion after a speech was delivered by Russian President Vladimir Putin (English Translation: here). The speech provides Russia’s “justification” for using force against Ukraine. From the speech, two significant points can be gathered. First, it is an intervention via invitation (IVI) for collective self-defence under Article 51 of the UN Charter within the so-called “Donetsk People’s Republic” and the “Luhansk People’s Republic.” Second, it is to end a genocide being conducted by the Kyiv regime for six years. The second justification seems to be invoking the responsibility to protect (R2P), a principle that Russia has historically denied.
The authors believe that the assertions put forth by the Russian President are like a whiteboard with erroneous written all over it. The purpose of this piece is to provide a legal analysis of the assertions made by the Russian President and depict their inconsistency with international law. Every rule in international law is subject to exceptions. The exceptions to Article 2(4) of the UN Charter of IVI and the controversial R2P have specific criteria that must be fulfilled for them to be invoked. This piece first determines these criteria and then proves that the Russian operation did not fulfil the criteria for these exceptions based on general and customary rules of international law and international jurisprudence.
Defence of IVI:
IVI and collective self-defence are sometimes seen as two independent exceptions to the prohibition of the use of force, and hence as two distinct reasons for governments to legitimately employ force. However, upon closer examination, the two notions seem to be somewhat similar, since both deal with situations in which a state invites/requests the aid of another state’s military (For a detailed discussion of their interplay: See here, here and here).
The rationale of the concept is that the prohibition on the use of force only covers the use of force without consent. In the Nicaragua case, the International Court of Justice (ICJ) solidified IVI as a concept within international law.
However, what is of essential significance in the Russian situation is that the ICJ also stated in the same case that the concept of non-intervention would lose its legal efficacy if the intervention were justified only based on a request for help made by an opposition organisation in another State. Indeed, it is difficult to see how the norm of non-intervention would survive in international law if the intervention were permitted at the opposition’s request. This would allow any state to interfere at any time in another State’s internal affairs, whether at the request of the administration or the opposition. The ICJ further stated that such an interpretation is not consistent with the present position of international law (para. 246).
Applying the same principle in this case, the legalising effect of consent by “Donetsk People’s Republic” and the “Luhansk People’s Republic” must be questioned. Especially since the situation is such that the consenting government is not legitimate and not recognised by any State other than Russia. Therefore, the Russian defence of IVI has no merits.
Defence of R2P:
It is essential to reiterate that Russia has historically denied the use of R2P as a valid exception to the prohibition on the use of force. Further, in the speech, the Russian President criticised the use of force by the North Atlantic Treaty Organization (NATO) in various instances. The Russian President stated:
“Then came the turn of Iraq, Libya, Syria. The illegitimate use of military force against Libya, the perversion of all decisions of the UN Security Council on the Libyan issue led to the complete destruction of the state, to the emergence of a huge hotbed of international terrorism, to the fact that the country plunged into a humanitarian catastrophe that has not stopped for many years. civil war. The tragedy, which doomed hundreds of thousands, millions of people not only in Libya, but throughout this region, gave rise to a massive migration exodus from North Africa and the Middle East to Europe.
A similar fate was prepared for Syria. The fighting of the Western coalition on the territory of this country without the consent of the Syrian government and the sanction of the UN Security Council is nothing but aggression, intervention.
However, a special place in this series is occupied, of course, by the invasion of Iraq, also without any legal grounds. As a pretext, they chose reliable information allegedly available to the United States about the presence of weapons of mass destruction in Iraq. As proof of this, publicly, in front of the eyes of the whole world, the US Secretary of State shook some kind of test tube with white powder, assuring everyone that this is the chemical weapon being developed in Iraq. And then it turned out that all this was a hoax, a bluff: there are no chemical weapons in Iraq. Unbelievable, surprising, but the fact remains. There were lies at the highest state level and from the high rostrum of the UN. And as a result: huge casualties, destruction, an incredible surge of terrorism.”
Therefore, it seems to be the case that the Russian President is criticising the NATO countries for using R2P as a part of his justification for its use by Russia in this instance. This argument seems extremely hypocritical and lacks consistency.
Now coming to the so-called “genocide” against the people of Donetsk and Luhansk by Ukraine and granting statehood. The threshold for remedial secession or on the basis of self-determination in response to an alleged genocide seems to be placed awfully low by Russia (this issue has been discussed in detail here). Especially when Russia asserted that Kosovo did not meet the threshold for ceding from Serbia even after the International Criminal Tribunal for the former Yugoslavia (ICTY) documented the mass atrocities faced by the Kosovar Albanians.
The legal qualification of genocide as an act and its social reality has a significant say in the determinant acts in nexus to it. The abilities of domestic courts and the responsibility of states are subject to legal action taken; however, even before dwelling into these concrete steps, implications in international relations are to be addressed. The drumbeat accusations amidst the Russian-Ukraine conflict have highlighted that the Russian President has asserted that there is a ‘genocide’ being conducted by Ukraine, thus circulating a document to the UN Security Council accusing Ukraine of exterminating the civilian population. A nation whose history is rooted in Joseph Stalin’s mass killings in the 1930s should have a better understanding of the nature of the genocidal character and the standards required to conclude the same, which in the present case are absent. The actions of Russia raise questions as to whether a moral right of humanitarian intervention is converted into a right under international law in the event of attempted genocide? And what shall be the objective standards to determine the threshold of damage and the intervention itself? The invocation of genocide represents more than just a shallow casus belli. Genocide entails an aggravated regime of state responsibility. It is a composite crime and consists of acts which are themselves punishable by most existing legislations. The Convention on Preventing and Punishment of the Crime of Genocide (convention) defines acts amounting to genocide and enumerates material offences with necessary mental elements. Extermination, as described in Prosecutor v. Radislav Krstic in the ICTY (para. 492-505), is understood as actions that are subordinated with an intent to destroy or cripple a human group permanently (also see statements made by Sir Hartley Shawcross and Sir David Maxwell Fyfe here.)
The convention differentiates between ‘attempt’ and ‘Partial act,’ as has previously been upheld by International Criminal Tribunal for Rwanda in Prosecutor v. Laurent Semanza (para. 316). In the crime of attempted genocide, an entity does not realise its intent, whereas, in a crime of genocide, the acts are attributed to a state to establish the intent. Russia furthers its intervention on the lines of the attempt of genocide, thus shall never meet the standards of intent required to act against Ukraine. Further, the International Law Commission has also held that such an irrational understanding of international standards is inconsistent with international law (page 44). The same in the context of genocide is established through establishing dolus specialis, i.e., a special intent. It neither requires many victims nor even their deaths, rather a systemic deprivation of identity and acts of inhumanity. Since the Russian annexation of Crimea and subsequent conflicts, this burden against Ukraine has not been met. Such proliferation of the convention and existing principles of international law indicates genocide’s politicisation. The claimed atrocities against the people of Donetsk and Luhansk by Ukraine, even if we assume the Russian President’s assertions to be accurate, the acts would qualify as crimes against humanity, the separate codifications – one in international treaty and other in international custom, does not call for the same response from a State and it will still not be construed to be a genocide.
Concluding Remarks
Thus, the justifications provided by the Russian President of IVI and R2P in this instance do not meet the criteria necessary to be valid exceptions to the prohibition on the use of force. The actions by Russia appear to be founded in the warped Russian assertion of the world being dominated by a hostile west, leaving them to be the sole protectors of the people of Russia and Ukraine. Russia never accepted the right of Kosovo for self-determination or remedial cessation on the basis of genocide. However, Russia wants to use the same argument when it favours its policy. Russia’s invasion of Ukraine is neither justified under IVI or R2P nor does it meet their own interpretation of international law in the past. This is a reminder of the Suez Canal Crisis period, where in one meeting of the UN General Assembly Emergency Special Session (GA ESS), the Soviet Union criticised the intervention of France and Britain in the middle east. Simultaneously, in another UNGA ESS meeting, the Soviet Union supported their intervention into Hungary. Russia’s policy and interpretation of international law have been rooted in hypocrisy. Russia is playing the same game with a different play; the international community is aware of it, the only question which remains is what will they do about it?