Russia’s Illegal Invasion of Ukraine & The Role of International Law

The United States’ leadership of Western opposition to Russia’s invasion of Ukraine is the correct response. No question. The entire international system of States is based upon Westphalian notions of sovereign equality, border inviolability, territorial integrity, political independence, and autonomy. Russia violated each of these norms in its treatment of Ukraine and Vladimir Putin is trampling key provisions of the U.N. Charter enshrining them as law.

Putin’s Playbook

Moscow’s highly-orchestrated international legal pirouette looks familiar: (1) denial that Ukraine was even a country prior to Russia’s recognition of it, (2) recognition of new independent States dominated by Russian-speaking inhabitants emerging from Ukrainian territory, (3) allegation of atrocities committed upon those people by Ukrainian forces, (4) requests for military assistance by these new governments, and (5) deployment of Russian forces in response to those requests. This same sequence unfolded in 2014 and ended with Crimea’s request to join Russia, followed by its annexation—ultimately the same ending that will play out with Ukraine’s Donetsk and Luhansk regions.

Much has been made about this entry of Putin’s “playbook.” Entirely appropriate analogies have been drawn to Germany’s absorption of Czechoslovakia’s Sudetenland in 1938, ostensibly to protect German-speaking people being abused by the Czech government. To be sure, this would be like Mexico invading southwestern counties in Texas to protect Spanish-speakers living there—absurd on its face. But these parts of the playbook are actually quite older than that, and we should be clear-eyed about who wrote them.

It traces at least as far back as the late-19th Century era of colonialism. As but one example of that period’s nearly unrestrained territorial expansions, even the United States slow-rolled an annexation of Hawaii in the 19^th century, allegedly to protect Americans. The United States denied Hawaii’s existence as a State prior to our recognition of it in the 1840s, opening the door to U.S. sugar interests consolidating this trade. By the 1890s enough Americans had moved to the islands, taking over key economic sectors, that the monarchy’s power became significantly diluted. Eventually, local Americans formed a Committee of Safety that deposed the Queen and requested the United States land a force to protect them from alleged abuses—which it did, from the U.S.S. Boston. A new American-led Hawaiian Republic was formed in 1894 under president Sanford Dole and, after political maneuvering in Washington, gained recognition. Annexation then followed in 1898 with Dole continuing as territorial governor.

Although carried out in an entirely distinguishable international legal context, the United States actually disavowed its own conduct in the takeover of Hawaii in a 1993 congressional resolution signed by the U.S. president apologizing for its actions and recognizing the sovereignty of native Hawaiians. While legally disavowing a troubling piece of international practice further weakens its legitimacy, it seems there is no erasing it from the international relations playbook.

There’s also little doubt that President Xi is thumbing through this playbook now with respect to Taiwan, keenly watching both the West’s response to Russia’s invasion of Ukraine and protests within Russia. How both dynamics play out will surely factor into any move by China against Taiwan—home to foundries that produce 50% of the world’s semi-conductors. Xi would not want to botch the incorporation of Taiwan as Mao botched China’s annexation of Tibet in 1959. Much as Putin styled invading Ukraine as freeing that country of a drug-addicted government of neo-Nazis, China styled its invasion of Tibet as liberating the Tibetan people from a backward theocratic feudal system. However, Chinese forces failed to capture the Dalai Lama, who set up a government in exile south of the Himalayas, remaining a significant thorn in China’s side by successfully keeping the international spotlight on the plight of Tibet for over 60 years. Putin understands history and is circling Kyiv now to make sure President Zelensky is captured for this very reason.

International Security Assurances

The security-based pieces of international law that fall around this conflict like so much recently dusted up ash from Chernobyl’s nuclear cemetery also lead to unsatisfactory applications. The U.N. Charter’s Security Council is frozen from action by Russia’s veto. NATO’s article 5 collective military response trigger won’t be tripped until Russian forces cross into the Baltic states, Poland, or Romania, unless of course cyberattacks are deemed attacks. And the Budapest Memorandum signed by the United States, United Kingdom, Russia, and Ukraine in 1991, providing security assurances to Ukraine for its territorial integrity, political independence, and border inviolability in exchange for Kyiv giving up the nuclear arsenal it inherited from the defunct Soviet Union, has been rolled over by Putin’s tanks, leaving the Americans and British emphasizing to the Ukrainians the legal difference between “assurances” and “guarantees.” International criminal law and the Geneva Conventions may, however, yield better legal results.

Legal Fallout

There is no doubt that Putin can be prosecuted as a war criminal for how this invasion has been executed against civilians and their property without military necessity, just as Serbia’s Slobodan Milosevic was prosecuted for his role in orchestrating the Balkan civil wars. The International Criminal Court’s prosecutor confirmed that the court has jurisdiction over war crimes committed by Russian forces in Ukraine. Due to Ukraine’s acceptance of the ICC’s jurisdiction to investigate and prosecute crimes committed on its territory from 2014 onwards, key legal hurdles that stymie the court in other situations are cleared in this case. That said, because of limitations on the court’s ability to pursue the crime of aggression, which Russia clearly committed as well, no case could be brought on that basis.

Frustratingly, international law doesn’t provide answers so much as frameworks, but they are frameworks within which the world agrees to operate. When great powers depart from such norms, the rules must be enforced against them where possible. If this means unsealing an arrest warrant against a sitting head of State, as the ICC did previously against the president of Sudan for genocide, then all the better for deterrence. It would be yet one more factor for Mr. Xi to consider as he eyes doing the same thing to Taiwan.

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Michael Kelly holds the Sen. Allen A. Sekt Endowed Chair in Law at Creighton University School of Law.

Photo credit: UN photo by Joao Araujo Pinto