February 2014. At the end of the Euromaidan Revolution and after the escape of pro-Russian President Viktor Yanukovich, Ukraine appears ever closer to the West. Almost immediately afterwards, however, armed men in Russian uniforms, although without any insignia, occupy key facilities and checkpoints in Crimea, a peninsula slightly larger than Sicily that offers Kiev a dominant position over the entire Black Sea. It is not long before the Kremlin recognises the paternity of the operation, followed by a referendum, which determines the integration of the peninsula into the Russian Federation. Far from being universally recognised, the Russian annexation of Crimea is condemned as illegal by Ukraine and the majority of the international community.
February 2021. Crimea remains under Russian control. For eight years now, tensions between Moscow and Kiev have continued to escalate in alternating waves, extending to another separatist region in south-eastern Ukraine, the Donbass. Recently, fears of a new invasion have been corroborated by the movements of Russian armed forces on the Ukrainian border, and the outbreak of an armed conflict on Europe's doorstep seems not to be so far-fetched.
Given its complexity, the Ukrainian issue needs to be examined with a multifaceted approach, and one of the most interesting perspectives is certainly that of international law. Therefore, we will propose a legal analysis of what has happened between Russia and Ukraine since 2014, starting precisely with the annexation of Crimea. In particular, this article will highlight the terms in which the international community has generally condemned the illegality of the operation with reference to the so-called ius ad bellum.
Use of force
The ius ad bellum, literally translated as "right to war," refers to the set of norms and principles that a state must observe before it can legitimately use armed force at the international level. There seems to be no doubt that Russia's annexation of Crimea is a violation of Article 2(4) of the UN Charter, which prohibits member states from resorting to the use or threat of force in their international relations. Indeed, such a large-scale military incursion into the territory of a country violates the prohibition even if no shots are fired, as suggested by
UN General Assembly Resolution 3314 on the definition of 'aggression'. Art. 3(e), in fact, defines as an act of aggression any extension of the military presence of one state into the territory of another in contravention of agreements entered into by the two countries.
The first and immediately dismissable exception corresponds to an authorisation by the UN Security Council (UNSC). By virtue of the powers listed in Chapter VII of the UN Charter, in fact, the UNSC can authorise member states to use 'all necessary means' to maintain international peace and security. A famous example is Resolution 678 of 1990, in which the UNSC gave its blessing to the first Gulf War. Such a UNSC blessing, however, was neither granted nor requested with regard to the Russian intervention in Crimea. On the contrary, the UN has generally expressed its opposition to the invasion of the peninsula, as stated in General Assembly Resolution 68/262, which calls on all member states to desist from any attempt to threaten Ukrainian national unity and territorial integrity.
The second exception is the right of self-defence, a customary feature of international law codified in Article 51 of the UN Charter. According to this article, a member state that is the object of an armed attack may respond to it by resorting to the use of force, provided that such use is necessary and proportionate to the state' s defence. However, it seems complicated to grant such a right to Russia, as there is no evidence that an armed attack against Russia has been carried out or even hatched by Ukraine. In fact, the only statements by the Kremlin on the issue make only a general reference to a threat to the life and health of Russian citizens in Crimea and Donbass, but without giving any concrete examples.
It is questionable, to say the least, whether Article 51 can be invoked by a state to protect its own citizens living abroad. Moreover, since by 'citizens' Moscow means not so much individuals of Russian nationality but rather members of the Russian-speaking ethnic group in Ukraine, the intervention in Crimea is even more difficult to justify in terms of self-defence. In addition, despite a certain divergence between the Russian and Western media on what was happening in Crimea in 2014, there were no reports of threats to Russian 'citizens' or soldiers in Ukraine, whereas an armed attack must be of considerable scope and effect. In any case, the de facto military occupation of the peninsula goes beyond any reasonable criteria of necessity and proportionality. Therefore, it is highly unlikely that the Russian invasion can be justified as a legitimate act of self-defence.
Intervention by invitation
The third justification, which does not appear in the UN Statute, is the consent of the state subjected to the use of force, on the basis of so-called 'intervention by invitation'. This was the Kremlin's favourite route, justifying itself by saying it had acted at the request of Yanukovich, who fled to Russia at the height of Euromaidan, and the Crimean prime minister.
Generally, a head of state can legally represent his country. The problem is that on 22 February 2014 the Ukrainian parliament had already called for Yanukovich's resignation and replaced him with a new president, Oleksandr Turchinov. The legality of an intervention by invitation, in fact, is based first and foremost on the fact that the request comes from a duly constituted government, and, in times of unrest and various claims to legitimacy, the effective control of a state seems to be the only objectively determinable factor. So, what matters internationally is that Yanukovich no longer had effective control of the nation, while the central government in Kiev continued to perform its functions despite the change in the presidency.
As far as the Crimean prime minister is concerned, his call for action has even less value than that of the former president. Despite its status as an autonomous republic, Crimea remained de iure a region of Ukraine. It follows that its prime minister could not invoke the help of foreign troops against Kiev's wishes, any more than the President of the autonomous province of Bolzano could legally request Austrian military intervention to separate from Italy.
In conclusion, Russia's use of force in Crimea is not legally justifiable. However, to get a more complete picture of the situation one would also need to consider the point of view of the inhabitants of the peninsula as well as the Kremlin's general approach to international law. These are the two topics we will address in the next article.
Article translated by: Elena Briasco