The Ukrainian issue - Invasion

After the “without a fight” annexation of Crimea and eight years of crisis in the Donbass region, war has returned to European soil. February 24^th 2022 seems destined to become a historic date, according to some a possible September 11^th for the old continent, because of the magnitude of the immediate and long-term consequences of what has turned out to be an authentic invasion. Indeed, the Kremlin's move and the reactions that accompanied it - from Germany's rearmament to the scale of magnitude of the sanctions imposed against Russia - have the potential, already realized at times, to change political, economic and legal paradigms.

One of the most feared changes would be the reinterpretation of the prohibition on the use of force, a cardinal principle of post-1945 International law enshrined in Article 2(4) of the United Nations Charter. The almost unanimous response from the international community condemning the Russian military intervention would discredit, at least in part, this fear. Considering that even Putin tried to cite legal justifications in the speech that inaugurated the war effort, it could be argued that International law has not been completely dispensed with, but instead retains at least nominal value.

Therefore, in this article we will analyze the invasion of Ukraine from a legal perspective, with reference to the ius ad bellum, that is the rules and principles governing the legitimacy of recourse to the use of armed force in international relations.

What about the foibas?

The attack launched by Russia blatantly trample the obligation to abstain from the use of force and to respect the sovereignty and territorial integrity of Ukraine, expressed in the aforementioned Article 2(4), reiterated in the Helsinki Final Act of 1975, and again in the Budapest memorandum of 1994.

As a preamble to the justifications put forward, Putin's speech refers to a series of violations of international law attributable to the West. In outlining the context in which this “special military operation” would take place, the Russian President recalls the military interventions of the Atlantic powers in Kosovo, Iraq, Libya and Syria. As acknowledged by Professor Marko Milanovic, these criticisms are not without impact, since the above-mentioned violations, regardless of whether they are unanimously recognized as such, have eroded certain obligations of the UN Charter, and make Western claims against Russia less persuasive. On the other hand, these arguments lack moral substance and constitute an example of benaltrism, that is a ploy to evade criticism by focusing on other similar ones. It is clear that the “there is more” perspective has no legal value, unless one replaces the founding principles of the UN Charter with the balance of power logic mentioned in a previous article.

Individual self-defence

A more valid legal justification appears to be that of self-defence, a customary right codified in Art. 51 of the UN Statute, and the exception to the prohibition of the use of the most widely used and abused force. Indeed, in his speech, Putin identifies the “policy of containment of Russia” by the United States and its allies - the eastern expansion of NATO, the introduction of sophisticated weapons into Ukraine, the accusation of western control over Ukrainian 'neo-Nazis'... - as “a matter of life and death” that requires a prompt and resolute response.

According to the most widespread interpretation of Art. 51, a State is authorized to use force to defend itself against an "armed attack," whether ongoing or imminent. It is precisely the concept of imminence, however, that presents problems, being open to more restrictive or more expansive readings. In the present case, Russia's vision, that prophesizes an existential threat with no certain or imminent armed attack on the horizon, seems so broad as to be unsustainable. The Kremlin's proposal therefore seems to be a preemptive self-defence one, incompatible with the criteria of necessity and proportionality that would legitimize it. In fact, it is highly controversial to claim that the use of force was the only way to resolve the Ukrainian question. Moreover, the scale of the Russian invasion goes beyond any reasonable limit of proportionality, even if Kiev had actually launched an armed attack against Moscow.

Collective self-defence

The same criteria of necessity and proportionality also exclude the possibility of invoking collective self-defence to protect the Donec’k and Luhans’k People's Republics. Further eroding this justification is the question of the statehood of the self-proclaimed Republics. The difficulties in granting the right to self-determination, or even remedial secession, to the Russian-speaking ethnic groups of the Donbass have already been discussed in the previous article. Their recognition by Moscow has no effect on the status of the rebel oblast under international law. To this day, therefore, since the People's Republics lack basic requirements - such as effective control over their territory - the People's Republics are not considered States, and therefore cannot request assistance from Russia. Russia's rescue to the separatists is therefore in violation not only of the prohibition on the use of force, but also of the principle of non-intervention in the internal affairs of another State.

Humanitarian and ideological intervention

In addition to self-defence, Putin's speech refers to a kind of humanitarian intervention, as he accuses the Kiev government of violent crimes against civilians and even genocide in the Donbass. While the latter accusation seems unfounded, it is true that both sides of the crisis in Eastern Ukraine have been accused of numerous atrocities.

Humanitarian interventions remain highly controversial to date, as does the idea of the “responsibility to protect” (R2P) oppressed populations. In general, the majority opinion would consider this type of intervention as prohibited under International law, and the legitimacy of R2P as subject to authorization by the UN Security Council acting in accordance with Chapter VII of the Statute. In any case, once again, the present invasion remains too much to be considered anything other than aggression against Ukraine.

The stated purpose of the attack, that is the "demilitarization and denazification of Ukraine" has also gained some resonance. The role of far-right Ukrainian paramilitary formations in the Donbass crisis, and more generally that of ultranationalist groups in the Country, would seem to give some substance to Putin's words. However, the genocide and anti-Nazi rhetoric adopted by the Kremlin has been generally condemned as a distortion of the current and historical Ukrainian context. Moscow's propaganda attempt to evoke the Great Patriotic War - as the conflict on the Eastern front of World War II is known in Russian historiography - and to justify the invasion as a fight against absolute evil by discrediting the enemy, in fact, does not appear credible. If only because it portrays as Nazi a State whose President, Volodymyr Zelensky, is Jewish. In any case, as stated by the International Court of Justice in Nicaragua, an “ideological intervention” would constitute “an extraordinary innovation” in International law. It therefore seems unlikely that the call for “denazification” has any mordant as a legal argument to justify the invasion.

Translated by Moira Rimini