Ukraine Symposium – Ukraine’s “Indefinite” Incursion into Russia and the Jus ad Bellum
In early August, following two and a half years of attempts to repulse invading Russian forces from its eastern territories, Ukraine conducted a large-scale ground counteroffensive into Russia from its northern border. In the largest incursion of its kind since the Second World War, Ukrainian forces have so far seized approximately 500 square miles of Russian territory within the Kursk oblast, including dozens of cities and communities. According to President Zelensky, the purpose of the incursion is to create a preemptive “buffer zone to prevent further attacks by Moscow across the border.” According to a Ukrainian military official, thus far Russia has diverted approximately 30,000 Russian troops from the eastern front in Ukraine in an attempt to repel the counteroffensive.
During a later interview with NBC News in early September, however, President Zelensky further explained that his forces intend to hold any Russian territories seized throughout the incursion “indefinitely” as one of several “stages to end the war” as part of his overall “victory plan.” He clarified, “[w]e don’t need their land. We don’t want to bring our Ukrainian way of life there.”
Ukraine’s incursion into Russia begs the question of Ukraine’s compliance with rules pertaining to the use of force set forth in the jus ad bellum. Specifically, it raises the issue of whether Ukraine, as the undeniable victim of an ongoing Russian armed attack, may lawfully invade its aggressor in self-defense without running afoul of the rule of proportionality, as that term is understood in the jus ad bellum context (as distinguished from its use in the law of armed conflict) (e.g., here and here). If it may, President Zelensky’s ambiguous comment regarding the duration of the operation raises the related question of how long Ukraine’s incursion may reasonably last before it becomes unlawful.
This post addresses both questions in turn. It is important to note that analysis of the former is limited to assessing compliance with proportionality. This post does not assess whether the operation complies with the companion jus ad bellum rule of necessity, briefly described below, but presumes it does. Nor does it address issues concerning other bodies of international law, such as whether Ukrainian forces are now occupying certain Russian territory, which are beyond its scope.
Jus ad Bellum Proportionality
There is no dispute that Russia’s patently illegal invasion triggered Ukraine’s right to self-defense under Article 51 of the UN Charter and customary international law. Nonetheless, it is widely accepted as a matter of customary international law that the use of force by States in lawful self-defense is subject to two conditions (e.g., Paramilitary Activities, para. 194; Nuclear Weapons, para. 41; Oil Platforms, paras. 43, 74, 76). First, with respect to when States may use force in self-defense, victims may only act on their right to use force in self-defense if doing so is necessary to prevent or repel an imminent or ongoing armed attack. Next, the use of force must also be proportionate. Not only must these requirements be satisfied at the outset of using force, but there is agreement (although not undisputed) that they must also remain satisfied throughout the entire duration of the conflict.
States have long observed the application of these customary rules. Following the notorious burning of the Caroline by British forces in 1837, for instance, U.S. Secretary of State Daniel Webster famously admonished the British minister to the United States that even lawful self-defense must not be “unreasonable or excessive; since the act justified by the necessity of self-defence, must be limited by that necessity, and kept clearly within it.” That defensive uses of force are subject to proportionality as a general, threshold matter is therefore the subject of little, if any, disagreement. On the other hand, the issue of precisely how much force a victim State may use is not well settled. Debate particularly surrounds the narrower question of what metrics one should use to measure proportionality, or, in other words, what defensive force must be proportionate to.
The prevailing, and in my eyes correct, view is that a victim State may only lawfully use that amount of force which is not excessive in relation to repelling or defeating the threat or danger faced, i.e., an imminent or ongoing armed attack (e.g., Simma et al., Commentary, p. 1426). This so-called “means-ends” or “functional” approach (Kretzmer, p. 238; Ruys, p. 111) thus requires that the force employed (means) may not go beyond the legitimate basis that permitted its use in the first instance (ends), lest it constitute an unlawful reprisal or punitive retaliation. To me, this makes sense in light of the object and purpose of the UN Charter, including its otherwise broad prohibition of the use of force in Article 2(4) to which self-defense is a narrowly drawn exception.
The approach enjoys widespread, albeit not universal, support among scholars and States. Its oft-cited formulation was set forth by then-UN Special Rapporteur Roberto Ago in his 1980 Addendum to the Eighth Report on State Responsibility:
The requirement of the proportionality of the action taken in self-defence, as we have said, concerns the relationship between that action and its purpose, namely—and this can never be repeated too often—that of halting and repelling the attack or even, in so far as preventive self-defence is recognized, of preventing it from occurring. It would be mistaken, however, to think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct. The action needed to halt and repulse the attack may well have to assume dimensions disproportionate to those of the attack suffered. What matters in this respect is the result to be achieved by the “defensive” action, and not the forms, substance and strength of the action itself (para. 121).
Other noteworthy experts endorsing the same or similar views include Ian Brownlie (International Law and the Use of Force by States, p. 261), Rosalyn Higgins (Separate Opinion, Nuclear Weapons, para. 5), Stephen Schwebel (Separate Opinion, Paramilitary Activities, para. 212), and Michael Schmitt (e.g., here). Tellingly, the groups of experts that produced the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (commentary to rule 72, para. 5) and the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (para. 4) also embraced this approach.
More critically, though, the approach reflects relevant opinio juris of specially affected States. In the United States’ and Iran’s written submissions to the International Court of Justice in the Oil Platforms case, for instance, both parties argued for a version of proportionality consistent with this means-ends approach. The United States contended “[f]orce can be used in self-defense, but only to the extent that it is required to repel the armed attack and to restore the security of the party attacked” (p. 141; see also U.S. DoD, Law of War Manual, § 1.11.1.2). Iran likewise asserted (at least initially) that the customary obligation is “not a question of proportionality measured against the delict, but rather of proportionality in terms of taking measures to halt and repel the attack, and thus protect the object that has been attacked” (p. 99; but see Reply, p. 155). The Democratic Republic of the Congo and Uganda proffered similar formulations of proportionality in their written submissions to the Court in the Armed Activities case (DRC, Memorial, para. 5.26; DRC, Reply, para. 3.159; Uganda, Rejoinder, para. 278).
Admittedly, this approach is not without critics. In Yoram Dinstein’s assessment, for instance, the argument that the standard should apply in all cases of self-defense “bristles with implausibility” (para. 749). David Kretzmer has similarly observed that “[t]he claim that the sole aim of using force in self-defence is to halt and repel the armed attack that triggered the right to use force seems removed from reality” (p. 262). And other reasonable, minority interpretations exist, such as those that argue that a victim’s use of force must have an equivalence of scale to the armed attack to which it responds (so-called “tit for tat” proportionality), or that the costs or harms of using force in self-defense must not outweigh its benefits (e.g., Kretzmer, p. 237–38, 278; Milanovic; Haque). While I believe these competing views are likely reconcilable, especially as it pertains to a war between two States like that of Russia and Ukraine, endeavoring to do so is well beyond this post’s scope.
Where May States Use Force in Proportionate Self-Defense?
Assuming that means-ends proportionality is correct as a matter of law, a remaining question is whether the object of self-defense—repelling or preventing an armed attack—necessarily limits where a victim may lawfully exercise self-defense (e.g., here and here). Stated differently, does proportionality permit a victim to invade its aggressor? One could argue use of terms such as “halt” or “repel” reasonably implies that defensive actions should be limited to the locus of the aggressor’s attack(s) or, in any case, should cease once they reach the victim’s border. One observer claims, for example, that “proportionality requires that forceful actions in self-defence must be confined to the area of the attack that they are designed to repel” (p. 163). If this is true, Ukraine’s incursion may arguably be excessive.
I, however, respectfully disagree. The more persuasive argument is that a State may use defensive force on the territory of its aggressor, regardless of where the latter’s attacks occur, if doing so is not excessive in relation to defeating the threat faced. Halting or repelling an attack should not be given so limited a construction such that they would not include practical and good faith means of attempting to defeat the enemy, regardless of where they occur. This, in my view, is axiomatic in warfare. In this regard, I agree in principle with Professor Dinstein’s contention that a defending State need not adjust its use of force “to artificial geographic limitations conveniencing the aggressor” (para. 750). After all, as Professor Ago correctly observed with respect to assessing proportionality, “[w]hat matters … is the [intended] result to be achieved by the ‘defensive’ action … .” (para. 121; see also Simma et al., Commentary, p. 1426-27).
If this is legally correct, much depends on a defending State’s strategy underlying its invasion of an adversary. In Ukraine’s case, it likely has sound strategic or operational reasons for doing so.
Strategic Impacts of Secondary Fronts
History is replete with examples of parties to a conflict attempting to achieve strategic objectives by opening secondary fronts, often in enemy territory. A classic reason is that belligerents often perceive, rightly or wrongly, that opening a secondary front provides an opportunity to break a prolonged stalemate in hostilities. In the Revolutionary War, for example, following a draw with General Washington’s forces in the northern theater of war, British forces conducted a secondary expedition, albeit unsuccessfully, into America’s southern colonies thought to be thick with loyalists sympathetic to the king, in hopes of turning the war’s course in Britain’s favor. Nearly a century and a half later during the First World War, allied forces bogged down by trench warfare on the Western Front likewise attempted to break a stalemate by way of a disastrous naval campaign against the Ottoman-controlled Dardanelles, including the Gallipoli peninsula, which Churchill insisted would open a line of communication to Russian forces and expose Austria-Hungary’s flank.
Secondary fronts also allow parties to potentially exploit their adversaries’ weaknesses or attack their centers of gravity (strengths), including their resources, alliances, or domestic political support. Following a deadlock in the early years of the Peloponnesian War, for instance, Spartan general Brasidas successfully led a campaign through Thrace, attacking the territories of rival Athens’ co-belligerent allies and eventually cutting off the gold and timber supplies that fed the powerful Athenian navy. The operation culminated in the Battle of Amphipolis in 422, leading to the six-year Peace of Nicias shortly thereafter.
Finally, but by no means exhaustively, another common reason for opening a secondary front is that it forces the enemy to divert its forces, oftentimes away from one’s own beleaguered forces or those of a key ally. A familiar example is Stalin’s vehement insistence during the Second World War for the allies to open a secondary front in Europe to relieve pressure on his defense against the Nazis’ advance into Russian territory. Following campaigns in North Africa (Operation Torch) and Sicily (Operation Husky), the allies eventually invaded Normandy (Operation Overlord) in June 1944. Germany surrendered less than a year later.
With respect to Ukraine, there is little question that its incursion into Russia offers strategic opportunities and advantages (as well as risks, as the examples above indicate). It is self-evident that the diversion of approximately 30,000 Russian troops and air assets critical to contesting or achieving air superiority to the northern front, for instance, has at least the potential to loosen Putin’s defenses, and the current stalemate in eastern Ukraine along with them. Further, the move can be seen as a way to affect Putin’s political support for the war at home. As General (ret.) Mark Milley, former Chairman of the Joint Chiefs, recently observed, “[t]here’s a big psychological blow here to the Russian mindset, specifically Putin, where you have a Ukrainian penetration of Russian territory, [for the] first time since World War II.”
A comprehensive rundown is not required here. Suffice it to say that, while its success or failure remains to be seen, Ukraine’s counteroffensive is manifestly intended to nudge Russia closer toward the negotiating table as part of an overall “victory plan.” Accordingly, there are few reasons to doubt that Ukraine’s incursion does not comply with jus ad bellum proportionality, at least considering where events currently stand.
Legal Limits
Although it is reasonable to conclude Ukraine’s incursion into Russia is proportionate under current circumstances, President Zelensky’s use of the term “indefinite” in his interview invites the question of when the operation might become unlawful under the jus ad bellum in the future. Compared to temporary incursions, the proportionality of prolonged presences in enemy territory in relation to their self-defense objectives is often suspect and, in any event, far more challenging to assess. Christine Gray cautions, for instance, that “Israel’s presence in South Lebanon from 1978 to 2000 and South Africa’s occupation of a buffer zone in Angola from 1981 to 1988 were both claimed to be justified as self-defence and both repeatedly and universally condemned as not necessary or proportionate self-defence” (p. 126). Israel’s activities and presence in the Palestinian territories are currently under similar international scrutiny (e.g., Occupied Palestinian Territory Advisory Opinion, para. 109). It is critical, therefore, for Ukraine to continually assess its operation in relation to its self-defense objective.
Aside from requiring that forcible self-defense be proportionate, international law also prohibits States from using force to acquire territory (e.g., Wall Advisory Opinion, para. 87; Occupied Palestinian Territory Advisory Opinion, paras. 174–76). Indeed, Article 2(4) of the UN Charter prohibits States, even those exercising their right to self-defense, from using force “against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” In the 1970 Friendly Relations Declaration, States further emphasized that they have a “duty to refrain from the threat or use of force to violate the existing international boundaries of another State” and that “[t]he territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.” A corollary prohibition with respect to the forcible annexation of territory, whether de jure or de facto, similarly applies.
It is abundantly clear, therefore, that Ukraine may not use its incursion or the establishment of its so-called buffer zone as an opportunity to claim any part of Russia as its own. At this time, there is no reason to suspect that it will. President Zelensky’s use of the term “indefinite” was, in my interpretation, likely intended to convey that his forces would not soon be conducting a deliberate withdrawal, a characteristic of previous cross-border attacks into Russia (e.g., here), in the style of a raid. Nor is there any indication that he meant Ukraine’s presence in Kursk would be in any way permanent. Indeed, President Zelensky stressed that “[w]e don’t need their land. We don’t want to bring our Ukrainian way of life there,” something that cannot be said of Russia’s invasion of Ukraine.
Conclusion
Proportionality remains an essential condition of the use of force in self-defense under the jus ad bellum. While there are other reasonable interpretations regarding how it applies, the most persuasive is that victim States may not use force that is excessive in relation to the object of self-defense, defeating the threat or danger faced. In my military training and experience, Ukraine’s opening of secondary front is a classic, if not time tested, means of achieving that end. This is true regardless of whether that front is in Ukrainian or Russian territory.
***
Lieutenant Colonel W. Casey Biggerstaff is an Assistant Professor in the Department of Law and Philosophy at the U.S. Military Academy at West Point.
Photo credit: Ministry of Defense of Ukraine
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