Ukraine Symposium – Ukraine, International Law, and Humanitarian Intervention

Responses to States that commit atrocities against their own people have long eluded international law. Some have pinned hopes on the concept of “humanitarian intervention,” whereby a State uses force (or threatens to use force) within the borders of a non-consenting State to end widespread human rights abuses. Humanitarian intervention is distinct from the protection of nationals under international law (which involves a State using force extraterritorially to protect its own citizens) as well as from peace interventions authorised by the UN Security Council.

Humanitarian intervention has long been a highly controversial area of international law. There is certainly a strong argument to be made that it existed as early as the nineteenth century. However, at that time international law essentially amounted to the rules of international relations agreed between Europe’s Great Powers without particularly global relevance. The controversy is even more stark contemporarily, given that there have been few examples (if any) of humanitarian intervention in international law and State practice since the foundation of the United Nations.

Today, explicit State support for humanitarian intervention is negligible. Further, its existence tends to be strongly opposed by those, such as some members of the Global South, who see it as a vehicle of Western imperialism. The potential for States to abuse the noble goal of saving strangers can be seen in Russia’s full-scale invasion of Ukraine on 24 February 2022. This post uses the example of Russia’s purported justifications for the invasion to demonstrate such weaponizing of international law.

Russia’s 2022 Invasion of Ukraine

Russia has insisted that the invasion of Ukraine is a “special military operation” and has banned Russian media from referring to it as a war. Nonetheless, Russia’s invasion of Ukraine was notable as the first time a State sought to conquer another sovereign State outright since Iraq’s invasion of Kuwait in 1990. While numerous violations of sovereignty and invasions occurred between 1990 and 2024, these did not involve flagrant annexations as took place in Ukraine. Russia asserts the “true sovereignty of Ukraine is possible only in partnership with Russia.”

Putin has offered various legal justifications for the invasion, including self-defence under Article 51 of the UN Charter (both individually and collectively with the Donetsk and Luhansk Peoples’ Republics) and the protection of Russian nationals. None of these justifications stands up to scrutiny. Putin also claimed that Russia was acting to “protect people who, for eight years now, have been facing humiliation and genocide perpetuated by the Kiev [sic] regime” and to end the “genocide of millions.” Russia repeated such statements regarding the need to protect Ukrainians at the UN Security Council as well as the UN General Assembly, where its representative reiterated claims of Kyiv committing genocide.

Russia has traditionally insisted that only the UN Security Council can authorise the use of force for humanitarian protection, rejecting any such role for the UN General Assembly (p. 56). This interpretation ensures that any authorisation on the use of force requires Russian acquiescence, given its right of veto on the UN Security Council. In 2013, Russia’s Foreign Policy Concept criticised the use of force to overthrow governments under the guise of protecting civilians. By 2023, Russia’s Foreign Policy Concept had evolved to oppose uses of force outside of the UN Charter which sought to bypass the UN Security Council.

Despite this evolution, Russia made similar claims regarding its need to protect people within Ukraine in 2014 to justify the invasion of Crimea, as well as in 2022 to justify its recognition of the Donetsk and Luhansk Peoples’ Republics. Russia has long maintained a right of intervention for those it deems under its protection, including ethnic Russians living outside Russian territory whom Russia calls “compatriots abroad.” However, the weakness of Russia’s legal claims is evident in its letter to the UN Secretary-General, wherein the sole justification forwarded by Russia’s Permanent Representative to the UN was self-defence under Article 51 of the UN Charter. Russia did not refer directly to any right of humanitarian intervention. Nevertheless, Russia’s allegations of genocide in Ukraine bear further analysis.

Genocide in Ukraine

There is a startling lack of evidence supporting Russia’s claims of genocide committed by Kyiv. Indeed, Ukraine was so aggrieved by Russia’s allegations of genocide that it commenced proceedings before the International Court of Justice (ICJ) to deny those allegations and to establish that Russia had no lawful basis to invade Ukraine “for the purpose of preventing and punishing any purported genocide.” Ukraine’s litigation at the ICJ is notable given it involved a State initiating legal proceedings to confirm it was not engaged in breaches of international law.

In response, rather than defend its allegations of genocide, Russia stated that a “reference to genocide is not equal to the invocation of the [1948 Genocide] Convention or the existence of a dispute under it.” Rather, Russia insisted that the “special military operation conducted by Russia in the territory of Ukraine is based on the United Nations Charter, its Article 51 and customary international law,” highlighting that Russia’s Permanent Representative to the UN had only invoked self-defence as a justification.

Russia later expanded on this argument, claiming that the term “genocide” has a broader meaning than exists under the Genocide Convention, but still maintaining that its use of force was based on Article 51 of the UN Charter and customary international law. It is worth noting Russia’s reluctance to stand by allegations of genocide as a justification for the invasion. When Ukraine challenged these allegations, Russia insisted that its actions were based only on self-defence.

The ICJ noted that there was a lack of evidence to substantiate Russia’s allegations of genocide and, even if there had been such evidence, it was “doubtful” that the Genocide Convention authorises a State to unilaterally use force against another State to prevent or punish any alleged genocide (para. 59). The ICJ highlighted that Ukraine has a “plausible right” not to suffer Russian military operations for the “purpose of preventing and punishing an alleged genocide on the territory of Ukraine” (para. 60).

Meanwhile, many historians signed a letter condemning Russia’s “cynical abuse of the term genocide, the memory of World War II and the Holocaust, and the equation of the Ukrainian State with the Nazi regime to justify its unprovoked aggression.” Such abuse of the term “genocide” is problematic, with the Organisation for African Unity highlighting that misapplication of the term trivialises it, rather than ensuring it is “carefully husbanded and used with the greatest care.” Similarly, the International Criminal Tribunal for the former Yugoslavia Appeals Chamber noted that genocide is to be “singled out for special condemnation and opprobrium,” with genocide’s gravity ensuring its stringent requirements.

Ukraine’s actions clearly did not cross this gravity threshold. While it cannot be denied that Ukrainian forces have committed war crimes, Russia has committed a “wide array” of atrocities from indiscriminate attacks to rape and torture. It is interesting that Russia advanced a claim of protecting Ukrainians, given its invasion has caused such misery to the Ukrainian people.

Concluding Thoughts

It is evident that Russian allegations of genocide in Ukraine are, at best, dubious. Russia appears to know this. While Putin was willing to invoke the supposed need to protect Ukrainians from genocide in his speech, Russia fell back on the right of self-defence under international law when forced to justify its actions before the ICJ. The right of self-defence is the most enduring and uncontroversial justification for the use of force, with the UN Charter referring to it as “inherent.”

It is unsurprising that Russia would rely on self-defence over more controversial justifications such as humanitarian intervention (even if Article 51 of the UN Charter requires an “armed attack” to occur, with no such attack occurring against Russia to justify its invasion of Ukraine). It is important to note that any right of humanitarian intervention under international law has long since been extinguished. While this right existed as part of international law in the nineteenth century, the UN Charter’s prohibition on the use of force and State practice since the UN’s foundation demonstrates there is no evidence of such a right existing under customary international law today. As such, Russia’s attempts to invoke the protection of Ukrainians as a justification for its invasion are problematic. If nothing else, Russia’s attempts to invoke genocide in Ukraine demonstrate the dangers of weaponising international law.

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Lieutenant Cian Moran is a naval officer with the Irish Defence Forces, where he is currently a Barrister-at-Law candidate at the Honourable Society of King’s Inns.

Photo credit: Ministry of Defense of Ukraine, armyinform.com.ua