Remarks on the Law Relating to the Use of Force in the Ukraine Conflict

Professor Mike Schmitt has addressed the application of the right of self-defense to the Russian invasion of Ukraine. This post adds comments on the application of the law relating to the use of force to the present conflict. Specifically, I address whether there is any other possible justification for the use of force by Russia on the basis of the protection of nationals, humanitarian intervention, intervention by consent, or invitation of the areas of Ukraine that were under control of separatists in the eastern regions of Donetsk and Luhansk. I will argue that none of these purported or potential justifications are relevant to the present conflict between the Russian Federation and Ukraine and that Russia’s (implicit) reliance on some or all of them has no basis in either law or fact. I will then argue why the lack of a legal basis for the Russian invasion of Ukraine matters.

Protection of Nationals

The doctrine of protection of nationals is a somewhat controversial basis for the use of force in international law. While pre-UN Charter international law recognized the use of force in the context of protection of nationals, it is open to considerable doubt whether that rather broadly based right was carried over into the Charter era. It is arguable that a much narrower right to use force to conduct a rescue operation now exists where an attack on nationals by using or threatening lethal force against persons on the basis of their nationality or holding persons hostage as a means to coerce the parent State into making concessions can be seen as an attack on the State through their nationals. In such cases, the argument for applicability of self-defense vis-à-vis the territorial State where nationals are located is most plausible when the territorial State is itself directly responsible or implicated in the threat of force against the parent State’s nationals, or is clearly not in a position to end the threat of serious harm to foreign nationals by an armed group and there is no realistic prospect of obtaining lawful consent to conduct a rescue operation within the time available to prevent the harm from occurring or continuing. There is also significant State practice whereby States conduct so-called “non-combatant evacuations” in situations where there is a general breakdown in public order due to internal conflict, natural disaster, or meltdown of State authority. These do not normally involve a use of force but may not always have consent from the incumbent government.

The first type of situation whereby an attack on a State’s nationals as a means to exact concessions from their parent State can arguably be seen as an armed attack on the parent State which can justify the use of strictly necessary and proportionate force to conduct a forcible rescue operation on the basis of self-defense is supported by a number of States and authors, including myself (p. 240). The clearest examples of such operations being accepted as lawful, or at least as not unlawful, were the successful Israeli operation to rescue a group of its nationals taken hostage by a group of terrorists who were flown to Uganda and held there with the complicity of the then Ugandan government of Idi Amin in 1976 and the abortive U.S. rescue attempt to free its diplomatic personnel held hostage in Tehran in 1980.

The latter type of situation whereby an emergency situation triggers a normally non-forcible, albeit nonconsensual, evacuation of foreign nationals includes numerous evacuations of foreign nationals in inter alia the following situations: Liberia (1990), Albania (1997). Lebanon (2006), and Libya (2011). None of these evacuations were forcibly opposed, although they did not always have clear consent from the territorial State. Opinions differ on the legal basis to conduct them in the absence of consent of the territorial State. My own view is that such non-consensual, (virtually) non-forcible evacuation operations can best be justified on the basis of the doctrine of “state of necessity” as a circumstance precluding wrongfulness under the law of international responsibility.

Be that as it may, neither of these narrow possibilities is applicable to the use of force by Russia in Ukraine. There are at least three reasons for this.

Firstly, the link of nationality between persons of Russian ethnicity in Ukraine and Russia is tenuous at best and more than likely unlawful under the circumstances in which it has been conferred. Russia has conducted a policy of granting nationality wholesale to persons of Russian ethnicity in neighboring States that formerly were part of the Soviet Union, including in Ukraine.

This policy of “passportization” is widely seen as an abuse of the discretionary right of States to confer nationality on the basis of their internal law. The reason is that it has been undertaken without any form of consultation with the State where the persons in question reside and while they are on the territory of the other State. This not only interferes with the domestic legal order of the State where these persons reside and whose nationality they possess, but if undertaken as a prelude and pretext to claim a right of military intervention to “protect” them, is an abuse of rights and quite plausibly a coercive intervention in the internal affairs of the State where the persons in question are located.

Secondly, there is no situation at hand that would justify a military intervention, even assuming a right to protect nationals exists. No action by the Ukraine government can be seen as a targeting of foreign nationals of a specific State to exact concessions. For example, no Russian nationals are being held hostage and threatened with lethal force in order to force Russia to do or abstain from doing something it is entitled to do under international law.

Thirdly, the scale of the use of force now employed by Russia ostensibly to protect persons of Russian ethnicity in Ukraine (many, probably most, of whom have no desire much less any need to be “protected”) is in no way proportionate to any action which has hitherto been undertaken by Ukraine to restore control over its territory in the context of the ongoing internationalized internal armed conflict in the Donbass region. Even if one accepts that certain aspects of Ukrainian policy relating to the use of the Russian language for official purposes has been less than adequate from the perspective of minority rights protection, this is in no way tantamount to an attack on Russian speaking Ukrainians or on Russia.

In short, there is no credible evidence of deliberate attacks on persons of Russian ethnicity by Ukrainian government forces which could justify an intervention on their behalf. This justification fails on both the grounds of lack of necessity to engage in a rescue of nationals,  and on the basis of the massive scale of the intervention which has as its aim the overthrow of the lawful incumbent government of a sovereign State and the imposition of a situation of complete subordination of that State to the policy objectives of the intervening State.

Humanitarian Intervention

Humanitarian intervention is an even more controversial basis for the use of force under international law than rescue of nationals is. It has little support in State practice and is generally rejected, or at least viewed with skepticism in academic writing, notwithstanding support by some authors.

“Humanitarian intervention” is defined here as a use of force triggered by acts constituting genocide, crimes against humanity, or large scale serious violations of the law of armed conflict amounting to war crimes in a foreign State for which no other legal basis in the form of a Security Council resolution authorizing force to halt the violations is available. Where the Security Council is able to take action and does so, there is a recognized legal basis. This is sometimes referred to as “collective humanitarian intervention” but it is a descriptive rather than a legal term since such collectively authorized action has its basis in the Chapter VII enforcement powers of the UN Charter and needs no separate legal justification.

The policy of Responsibility to Protect (R2P), as adopted by the United Nations, refers to such collective authorization as the only way a non-consensual military intervention in response to violation of core human rights can be justified. Consequently, it is more accurate to refer to humanitarian intervention only where military action is undertaken to halt large-scale systematic violation of the right to life in the absence of Security Council authorization

The handful of cases which match this description have been commented upon by numerous authors and need no further elaboration here.[1] What they all have in common is that force was used in the context of large-scale and serious violations of core human rights and had at least a (partly) humanitarian outcome in the sense that these large-scale human rights violations were brought to a halt. But in all the cases usually served up as examples of this type of forcible intervention (India in East Pakistan in 1971,Vietnam in Cambodia in 1978, Tanzania in Uganda in 1978/9, NATO in Kosovo in 1999), the States concerned (with only a very few exceptions) neither relied on humanitarian intervention as a justification, nor were these interventions seen as lawful at the time they took place, although the latter two were not generally condemned, which may amount to a degree of tolerance for such interventions in some cases.

In the absence of either a treaty basis for such intervention (the Genocide Convention to which I will return presently contains no reference to military intervention) or a customary law basis, since the cases concerned do not come even close to establishing a customary right for military intervention without Security Council authorization on the basis of the recognized criteria for the establishment of a rule of customary law, there is no plausible legal basis for this type of action. This is so even if in some cases the moral and policy arguments for condoning the outcome have meant that they were not openly condemned by most of the international community. For example, in the Kosovo situation a draft resolution to condemn the NATO intervention put forward in the Security Council by Russia received only three votes in favor with the rest of the Council not prepared to either accept it as lawful or reject it as unlawful.

As stated, the trigger event for humanitarian intervention is violation of core human rights amounting to genocide, crimes against humanity, or serious large-scale violation of the law of armed conflict amounting to war crimes. Russia claims that Ukraine has conducted a policy of genocide against the Russian speaking population in Ukraine and has used that as a pretext for its invasion. There is, of course, no credible evidence of any act of genocide on the part of Ukraine perpetrated against or aimed at destroying the Russian-speaking population. Moreover, the crime of genocide requires a “special intent” (dolus specialis) to destroy a specific group in whole or in part on the basis of race, religion, nationality, or ethnicity, and there is no evidence pointing to such a policy or series of actions by Ukraine.

Likewise, the Ukrainian allegations of genocide in connection with indiscriminate shelling and bombardment of cities do not seem to date to indicate any specific intent on the part of Russia to destroy a particular ethnic group and would not qualify as genocide, although such indiscriminate shelling and bombardment could very likely constitute crimes against humanity and/or war crimes. The question of genocide is at the time of writing before the International Court of Justice and it remains to be seen what action the Court will take, but it is highly unlikely that it will find any basis for the crime of genocide by either party to the conflict. In any case, Russia’s claim to be acting to halt a genocide aimed at the Russian speaking population of Ukraine has no credible basis in either law or fact.

Invitation

Russia has also named the invitation of the “governments” of the breakaway “republics” of Donetsk and Luhansk as providing the basis for sending troops into them and conducting what was first referred to as a “peacekeeping” mission and is now dubbed a “special military operation.” This potential justification also lacks any basis in law since the two breakaway entities are neither States nor can any invitation or consent granted by the leadership of the two breakaway entities either serve as a basis for the deployment of “peacekeeping” troops onto the territory that was under their de facto control at the time of the invasion or as a lawful basis for Russia to use force against Ukraine or any other State.

International law recognizes the authority of the lawful government of a sovereign State to invite or consent to a military intervention on its territory against a non-State entity, so long as the intervention is not in conflict with any peremptory rule of international law or any international legal obligation of either the consenting State or the intervening State(s). Such consensual intervention finds its legal basis in the sovereignty of the State and its plenary authority over its territory within the bounds of international law and is an attribute of that sovereignty. For example, most UN peace operations are conducted with the consent of the lawful government. Likewise, a government can consent to one or more States conducting an operation against an armed group which is trying to usurp its authority or which otherwise poses a threat to its internal stability. Examples include the consensual intervention of a coalition of States to combat the ISIS entity within Iraq and the French intervention to support the governments of certain countries in the Sahel region against jihadist armed groups.

But invitations issued by entities or individuals other than the lawful government of the State where the intervention takes place have no basis in law. And invitations which are in violation of a peremptory norm such as when a puppet regime is installed to issue an invitation or consent have no legal effect. Moreover, no consensual intervention can serve as a basis for the use of force against another State in the absence of a UN Security Council mandate or a lawful reliance on (collective) self-defence in response to an armed attack.

In the instant case, all of these obstacles to invoking consent as a justification for military intervention are present. The separatist entities in Donetsk and Luhansk are not sovereign States. Their leaders have no authority to invite or consent to a military intervention and since the intervention is conducted against the sovereign State whose territory is being violated. And there is no basis for relying on consent as a justification. The recognition by Russia of the two breakaway entities does not magically transform them into States and the recognition by Russia was itself an unlawful intervention into the internal affairs of Ukraine and palpably illegal, since it flew in the face of Russian guarantees of Ukrainian sovereignty in inter alia the Budapest Memorandum of 1994 and the Minsk Agreements of 2014 and 2015. In short, consent of a separatist regime, which itself is largely the creation of the intervening State to begin with, in order to conduct any kind of military operation against the lawful government of the State where the intervention is taking place is without any legal basis whatsoever.

Concluding Remarks: Why Does It Matter?

It is clear that Russia’s invasion of Ukraine has no basis in international law. Professor Schmitt has shown in his post why the right of self-defense is inapplicable to Russia’s actions and why in contrast Ukraine is the victim of an unprovoked armed attack amounting to aggression. I have given reasons here why reliance on any other legal justification which has been (implicitly) raised by Russia, including rescue of nationals, halting genocide, or consent or invitation by the breakaway entities in Eastern Ukraine has no basis in either law or fact.

While one might then ask whether any of this makes any difference in view of what is currently going on in Ukraine and the cynical disregard for and misuse of the law governing the use of force by the Russian government, I would say that the current situation shows the law matters more than ever. If until only a week ago many persons were under the impression that large scale wars of conquest between States were a thing of the past, the recent events show the law governing the use of force is still relevant and that States think it is of cardinal importance in preserving the integrity of States and safeguarding individuals from violence. The overwhelming vote on the 11th Emergency Special Session of  the UN General Assembly on 2 March reaffirming the principles laid out in the UN Charter relating to the non use of force and respect for the sovereignty, independence, and territorial integrity of all States underlined the fact that States still place great importance in upholding the law on the use of force and why those rules still matter, even if, like most rules of law, they are not always observed.

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Terry D. Gill is Professor Emeritus of Military Law at the University of Amsterdam, having held the chair from September 2001 until September 2020.

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Footnotes

[1] The majority of authors do not recognize a stand-alone right of humanitarian intervention without UNSC authorization. These include I. Brownlie, “Humanitarian Intervention” in J.N. Moore (ed.) Law and Civil War in the Modern World. John Hopkins Univ. Press (1974), 217 ff, Y. Dinstein, War, Aggression & Self-Defence,  CUP, (6th ed. 2017), 75-77 and 97-98, C. Henderson, The Use of Force and International Law, CUP (2018), 379ff, O. Schachter, International Law in Theory and Practice, Nijhoff (1991), 117-126, There are some authors who do see a right as arising under either a narrow interpretation of Article 2(4) allowing for interventions which aim to promote the “principles and purposes of the Charter” or as customary law or both. Exemplary among these are R. Lillich in Moore op. cit. “A Reply to Ian Brownlie and a Plea for Constructive Alternatives,” 229 ff, W.M. Reisman, “Humanitarian Intervention and Fledgling Democracies,” 18 Fordham Int. Law Journal (1994-95) 794, and F. Teson, Humanitarian Intervention: An Inquiry into Law and Morality, Transnational Publishers (2nd ed. 1997). For comment on the cases referred to in the text see e.g., T.Ruys et al. (eds.) The Use of Force in International Law: A Case Based Approach, OUP (2018).

Photo credit: Yan Boechat/VOA