Year Ahead – Does International Law Still Matter in Ukraine?
Considering Russia’s naked aggression against Ukraine and the contemptible torrent of international humanitarian law (IHL) violations by Russian and proxy forces, one could be excused for concluding that the law governing the use of force (jus ad bellum) and IHL don’t matter much. After all, it seems that spotlighting Russian violations does little to deter Russia from continuing abuses. As to the jus ad bellum, Russia occupied and annexed Crimea in 2014. Yet, despite the ensuing widespread condemnation of this unlawful use of force, it launched a full-scale invasion of Ukraine in 2022. Russia then unlawfully annexed four regions in the south and east that it partially occupied.
Similarly, Russian and proxy force IHL violations are both clear-cut and frequent. As evidenced by the many contributions to the Lieber Institute’s Articles of War project, there is almost no rule they have not breached. To take but one egregious example, the World Health Organization has verified over 630 Russian attacks on healthcare facilities. Indeed, as I offer these thoughts, Russia is engaged in a campaign that directly targets civilian power infrastructure in clear violation of IHL.
But both bodies of law do seem to matter to Russia – a little. For instance, Russia notified the UN Secretary-General that its February 2022 “special military operation” was “taken in accordance with Article 51 of the UN Charter in the exercise of the right of self-defence.” Russia has also claimed that it is responding to genocide and that Ukraine is an illegitimate country.
It has adopted the same counter-normative approach to IHL. Consider the ongoing unlawful attacks against Ukraine’s power infrastructure. Foreign Minister Lavrov has claimed that the “infrastructure supports the combat capability of the Ukrainian armed forces and nationalist battalions” and that Russia’s attacks are designed to “knock out energy facilities that allow you to keep pumping deadly weapons into Ukraine in order to kill the Russians.”
Both arguments are nonsensical. But the point is that Russia publicly justifies its violations in the narrative of international law – self-defense, humanitarian intervention, self-determination, military objectives, and proportionality. As with most States that violate international law on the battlefield and beyond, Russia does not want to be seen as a lawless actor. Even though widespread (and accurate) perceptions to the contrary have failed to change its condemnable behavior, the Russian excuses nevertheless illustrate that the law is not wholly irrelevant to them.
More importantly, international law has proven a significant factor in Ukraine’s ability to defend against the Russian onslaught, for every Russian violation strengthens the resolve to support Ukraine and punish Russia. Yes, weakness has been shown in this regard, especially in the immediate aftermath of the 2014 Crimea invasion. However, following the February 2022 full-scale invasion, the extent of military, materiel, and financial support has grown in parallel to the rising scale and scope of the Russian jus ad bellum and IHL violations. Those violations make it difficult politically and morally for States to back away from the support they are providing Ukraine (and rightly so).
For example, in the December joint statement by Presidents Biden and Macron, international law loomed large.
The Presidents strongly condemn Russia’s illegal war of aggression against Ukraine and stress that intentionally targeting civilians and civilian infrastructure constitutes war crimes whose perpetrators must be held accountable. They also condemn and reject Russia’s illegal attempted annexation of sovereign Ukrainian territory, in clear violation of international law.
They reaffirm their nations’ continued support for Ukraine’s defense of its sovereignty and territorial integrity, including the provision of political, security, humanitarian, and economic assistance to Ukraine for as long as it takes (emphasis added).
A few days earlier, NATO’s Foreign Ministers had emphasized that “Russia bears full responsibility for this war, a blatant violation of international law and the principles of the UN Charter. Russia’s aggression, including its persistent and unconscionable attacks on Ukrainian civilian and energy infrastructure, is depriving millions of Ukrainians of basic human services.” They pledged to continue supporting Ukraine. Citing Russia’s breaches of international law, the G7 and European Union likewise have committed to ongoing assistance. This willingness to shoulder the high costs of support appears firm, as signaled by the recent sanctions on Russian oil. States also continue to push for accountability, with the EU’s proposal of a special tribunal and referrals by States to the International Criminal Court serving as notable examples.
So, international law matters, albeit only to Russia for purposes of perceptions. Yet, as long as Russian violations continue, international support for Ukraine can be expected to remain relatively intact. If Russia hopes to dig itself out of the quagmire it has created through constant violations of international law, it must shift its policy to one of compliance with the jus ad bellum and IHL rules.
Finally, it must be emphasized that continued support for Ukraine depends on its strict compliance with IHL. It cannot afford to blur the sharp “good guy–bad guy” distinction between itself and its enemy if it hopes to survive and prevail.
Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.
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