Open Access Research Article
Decoding The Russian-Ukraine Conflict From International Law Perspective (By-Shreya Gupta)
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Decoding
The Russian-Ukraine Conflict From International Law Perspective
Authored By-Shreya Gupta
I.
Introduction
The recent intervention of Russia on
Ukraine is being seen as a great threat to the mankind as it is being regarded
as the beginning of the next world war. The invasion of Ukraine by Russia began
on February 24, 2022. Putin alluded to it as a “special military operation,”
but the scale of the assault shows that it is a full-scale war that has forced
more than 500,000 Ukrainians to flee their homes. All of Ukraine’s cities
are under siege, including the capital, Kyiv, which has become Putin's top priority.
This is being considered as the Europe’s deadliest battle since World War II.
The main aim of this paper is to critically examine whether Russia should be
held responsible for the war caused between Russia and Ukraine and whether the
invasion is justified under international law.
When a dispute between the States is
not settled by peaceful means and ultimately by coercive means, then States may
resort to war. According to Hall, “when difference between states reach a
point at which both parties resort to force, or one of them does acts of
violence which the other chooses to look upon as a breach of peace, the
realtion of War is set up, in which the combatants may use regulated violence
against each other, until one of the two has been brought to accept such terms
as his enemy in willing to grant.”[1]
The idea of war as a legitimate
phenomenon has a powerful resonance, lingering on the self-defence exception as
well as in geo-political assumptions about the importance of military power and
deeply rooted ideas of state security, despite the fact that the use of force
in international relations has been prohibited in the United Nations Charter
adopted in 1945.
This paper will examine the Russian
intervention by first setting out the background of the demographic, political
and geographical issues grappling Russia and Ukraine in Section II. This paper
then goes on to explain the causation of the war by pointing out what happened
in the year 2021 in section III. In section VI, the principals of Sovereignty
and Non-Intervention
with respect to Russian aggression on
Ukraine are discussed in detail. Section VII lays out an example of menacing
precedence in international law set by America during the Iraqi war. This paper
finally concludes with section VII with the author’s final observations and
comments.
II.
Background
To comprehend the complete background
of the invasion, it is necessary to travel back in time, to the beginning of
Europe’s existing divides, and examine how it created Europe’s power balance
today. The war between Ukraine and Russia dates back to 2014, when Russia
invaded and seized Crimea and Russian-backed separatist rebels gained control
of sections of Ukraine's Donbas area in the south east. Vladimir Putin has long claimed that Ukraine
belongs to Russia and that the two countries are one nation. Ukraine, however,
has worked hard to establish its own identity.
Ukraine was part of the Russian
Empire throughout the 18th and 19th centuries. In 1917, the Russian Revolution
brought down the empire, and the region descended into civil war. Ukraine
briefly achieved independence from Russian dominance before being incorporated
as one of the first republics of the newly created Soviet Union. During the
ensuing decade, the Soviet Union ruthlessly expanded its control. The Soviet
Union installed communist administrations on their side that they could easily
manage. However, the Western world evolved into democracies with capitalist
economies. The significant ideological split fuelled distrust and animosity
between the two sides, and both factions eventually formed military alliances.
The North Atlantic Treaty
Organization (NATO hereinafter) was established in 1949. The
member countries agreed to defend each other in the event of an invasion.
A few years later, these countries joined the Warsaw Pact alliance commanded by
the Soviet Union. And each side bolstered its military to defend itself against
the other. Europe remained divided for decades, until one side ultimately gave
way. By late 1991, countries such as Ukraine had declared their independence
from Soviet rule. The Soviet Union disintegrated into 15 sovereign republics,
one of which was a significantly weakened Russia. In 1999, Poland, Hungary, and
the Czech Republic all joined NATO. In 2004, seven other countries joined.
Therefore, NATO was moved into the traditional Soviet sphere of influence. The
NATO-Russia border will be the longest it has ever been. Both Ukraine and
Georgia have long coveted NATO membership, making them possible Russian
targets.
Ukraine became a NATO associate in
1994, bringing them one step closer to membership. And they planned to clinch
an association agreement with the European Union in 2013. However, when the
time came to sign the agreement, Ukraine’s pro-Russian administration refused.
Instead, they decided to enhance relations with Russia, which sparked public
opposition to signing the agreement. Following months of peaceful protests,
Ukraine’s president reacted by cracking down and killing over 100 people. More
protests erupted, finally driving the president and the country out of
government. This meant Putin's political power over Ukraine would dwindle, so
he opted to employ force instead. [1]
Initially, he invaded and seized the
Crimean Peninsula of Ukraine. Then, Russia-backed separatists took control of
the Donetsk and Luhansk regions and declared them independent of Ukraine. Since
then, Ukraine has remained at odds with Russia, resulting in the deaths of
14000 people and the displacement of approximately 2 million people. [2]
Putin has been preventing Ukraine from advancing further west since then.
III.
What Happened In 2021?
Putin chose to just go for it
during the month of November 2021. Satellite photographs show at least 100,000
Russian troops and military equipment amassing at Ukraine’s border.
Putin repeatedly denied any plans for an invasion at that time.[3]
However, he communicated his demands to the West many weeks later. His major
demand was for NATO to halt its expansion and return its military frontiers to
where they were in 1997, away from Russia’s. His requests were rebuffed by
Western leaders. Instead, they increased their military presence in Eastern
Europe and placed units on alert. Russia has begun massive military drills
along its border with Belarus. The possibility of conflict became serious on
February 21st. Ukraine declared a state of emergency on February 23rd, and
President Zelensky made a direct plea to the Russian people. [4] Putin
started a full-scale invasion of Ukraine hours later, on February 24th.
World leaders like European
Commission President, Ursula Von Der Leyen, UK PM, Boris Johnson and US
president, Joe Biden have spoken out against Russia’s invasion. As a result,
despite the danger of prosecution, anti-war rallies erupted throughout the
world, including in Russia. As hundreds of thousands of Ukrainians seek to
leave, neighbouring countries opened their borders. For the first time in
history, NATO’s reaction force has been activated. The United States has
sent more soldiers to Eastern Europe. In many respects, though, the world
is stepping cautiously since Putin commands the world's strongest nuclear
arsenal and has previously warned anybody who would meddle. As a result,
governments all over the world are adopting some of the hardest economic sanctions
in order to slow Putin down. And delivering massive amounts of military aid to
Ukraine.
IV.
Sovereignty And Principal Of
Non-Intervention With Respect To Russian Aggression On Ukraine
Ukraine and Russia, both, are
Sovereign States. According to Starke, “sovereignty of a state means the
residuum power which it possesses within the confines laid down by
International Law” [5]. Sovereignty,
in its most fundamental form, is a governing body’s unrestricted right and
authority over itself. It embodies rights and abilities that are unaffected by
extraneous sources or bodies. It is a position of supreme power. Territorial
sovereignty is a fundamental concept of international law that prevents states
from using force against another state’s “territorial integrity or political
independence.” An act of aggression is commonly defined as the use of force or
the imposition of a state’s sovereignty.
It is pertinent to note here that,
the concept of non-intervention is intertwined with the concept of territorial
sovereignty in that the prohibition of non-intervention is one of a sovereign
nation’s privileges. Non-intervention is a fundamental concept of international
law that has its origins in customary international law. It is an international
law concept that prevents governments from intervening in the domestic affairs
and political independence of another sovereign state. Under international law,
governments have a basic obligation to uphold this concept, which has both
prescriptive and prohibitive implications. The International Court of Justice
in the case Nicaragua v. the United States of America [2] helped
establish the principle of non-intervention. It held that “the principle
forbids all states or group of states to intervene directly or indirectly in
internal or external affairs of other States…
The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an
intervention which uses force, either in the direct form of military action or
in the indirect form of support for subversive or terrorist armed activities
within another State.” [3]
As evident from the explanation of
sovereignty and its relation with the principle of non-intervention above,
Russia not only violated Ukraine’s right to territorial sovereignty but also
did not abide by its duty to not to resort to war or to oblige with the
principle of non-intervention to maintain international peace.
V.
Is The Use Of Force By Russia
Justified Under International Law?
It is heartening to note that the
United Nations Charter deliberately avoided the use of term “War”. The charter
made use of general expressions like “the threat or use of force” or “threats
to the peace” or “breaches of the peace.” The wording of the Preamble of
the charter [4] clearly
demonstrates that the framers of the United Nations Charter were adamantly
opposed to War and chose not to deploy armed forces against another state’s
territorial integrity and political independence. Moreover, Article 2(3)
of the Charter states that “All member States shall settle their disputes by
peaceful means in such a manner that International peace, security and justice
is not endangered.” Therefore, as per this principle it is imperative for
the States to settle their dispute peacefully. Another principle of the United
Nations Charter is under Article 2(4), which clearly states that all
members shall refrain in their international relations from the use of threat
or use of force against the territorial integrity or political independence of
any State, or in any other manner inconsistent with the purposes of the United
Nations. Thus, the scope of the Charter is wide enough because it prohibits not
only War but the use of force or threat thereof.
In addition to the aforementioned, we
need to also consider Articles 33-38 of Chapter VI and Articles 39-51 of
Chapter VII of the Charter. In accordance with Chapter VI, if there is a threat
to international peace and security, states must address their disputes via
judicial settlement, negotiations, good offices, mediation, conciliation,
inquiry, or any other peaceful measures of their choosing. In this context, the
Security Council may also provide suggestions towards the peaceful resolution
of conflicts.[5] Chapter
VII mainly provides two things, collective intervention or enforcement action
and individual and collective self-defence. Further, the
Security council is empowered to take
collective action when there exists threat to peace, breach of peace and act of
aggression takes place.
As per the above laws mentioned, it
is quite evident that Russia has violated the fundamentals of the UN Charter
and thus should face the repercussions for it. Therefore, it can be said that
the use of force is not justified under international law. However, at this
stage, it is pertinent to consider the justifications given by Russia for
attacking Ukraine and to understand the current realities of applicability of
international law in the sections below.
VI.
Russia’s Justification For Invading
Ukraine
The fundamental objective of the
Russian leader was to invade Ukraine and overthrow its government, thus
preventing Ukraine from joining NATO. After a month of attempts to seize Kyiv,
the capital of Ukraine, he moved his attention to the country's east and south
[6].
The present security structure,
according to Vladimir Putin, is both unsuitable and harmful to Russia. It’s
unacceptably bad because it reflects a sequence of deepening military,
political, and economic ties between Ukraine and the West, which Putin regards
as essentially antagonistic to Russia. In Putin’s opinion, the current setup is
dangerous not because of what these relationships are now, but because of what
they have the possibility of becoming, namely a combined force capable of
either countering Russian interests in its neighbourhood or trying to
destabilize Russia itself by designing a distinct type of regime. The
possibility of Ukraine joining NATO epitomizes the security issue Putin sees on
his western border [7].
In addition to this, Vladimir Putin
claims that Kyiv was preparing for an assault on Russia by leveraging Soviet
know-how to develop its own nuclear weapons. The President did not provide any
proof to back up his assertion [8]. Even though the Ukrainian government
has clarified that it has no intention to join the nuclear superpower club in
the world yet the Russians use this as one of their defences for invading
Ukraine. Furthermore, President Putin argues that Ukraine is committing
“genocide” against the Russian-speaking people of the Donetsk and Luhansk
areas, commonly known as the Donbas, where the Ukrainian army has been battling
Russia-backed rebels since 2014. They believe that the Russian people living in
Donbas area are being subject to ethnic cleansing and genocide and that it has
a responsibility to intervene and assist them by attacking on Ukraine [9].
This assertion by the Russian leader is not backed by facts and thus gives no
right to invade Ukraine.
The justifications given by Russia
for its Ukrainian invasion evidently violates the principles of
international law as already
explained in the above section. It is my opinion that the war between Russia
and Ukraine is highly unproportionable, where one nation does not even have the
intention to join Nuclear Power club and other nation (Russia) is using it is a
self-defence to protect and justify themselves. This seems to happen because of
the lenient, non-binding and less stringent application of the principles of
United Nations as well as ICJ. The war is putting at stake thousands of
innocent lives to satisfy the political and geographical agendas. This type of
situations are the testing times and here we are observing that the
international machinery has failed to combat the Russian invasion of Ukraine.
What is at stake is the human life, which is not being focused and only the
territorial integrity of the nation is being given attention to.
VII.
Violation Of International Law By
The United States Of America Setting A Menacing Precedence
Previously, there have been several
instances where the member nation, the US holding the veto power in the United
Nations has itself violated the international norms as it poses itself to be a
global dominator. One of the examples of such violation is the invasion of Iraq
by the United States of America. In 2003, US aircraft dropped several
precision-guided bombs on a bunker complex where the Iraqi president was said
to be meeting with important staff. In the days that followed, a series of air
attacks were conducted against government and military sites, while US troops
invaded Iraq from Kuwait's south. Secretary-General of the United Nations Kofi
Annan claimed that the US-led invasion on Iraq was unlawful. The invasion,
according to Mr Annan, was neither sanctioned by the UN Security Council nor in
conformity with the UN Charter [10].
Even though the invasion was held to
be unlawful under the purview of International Law, there have been no legal
repercussions that the US faced. The International Court of Justice was silent
on the invasion of Iraq even though in the past it had held the U.S in the case
of Nicaragua[6] to be
liable for its military and paramilitary invasion. This type of vagueness in
the application of international law leaves a possibility of getting lost in
the grey-area of ambiguity.
VIII.
Conclusion
The war is still ongoing and because
of this invasion, a lot of human lives has been lost and a lot of them are at
stake if the brutal Russian aggression is not contained timely. Imposing
economic sanctions is just not enough to handle the situation, the
international community should take measures and to combat Russia for this aggression.
It is quite evidently established
that the invasion of Ukraine by Russia is a classic example of pre-emptive use
of aggression. The intervention cannot be considered in self-defence as Russia
did not provide any evidence to substantiate the claim that Ukraine was
building nuclear weapons or that the Russians living in Ukraine were under any
threat and simply the apprehension of joining NATO cannot be a logical reason
to invade in the sovereignty of Ukraine.
Moreover, the invasion was neither sanctioned by the Security Council of
UN by a way of a resolution authorizing Russia the use of force nor it
conformed to the fundamentals of the UN Charter. Therefore, it can be said that
due to the reasons explained above, the invasion constitutes as a crime of war
of aggression. The ICJ ordered Russia
to cease all military activities in Ukraine on March 16. Under the 1948
Genocide Convention, the International Court of Justice expressed scepticism
over the use of unilateral armed action against another state to prevent and
punish genocide. Article VIII of the Genocide Convention allows recourse to
other UN organizations, while Article IX of the Genocide Convention allows for
peaceful dispute resolution by the International Court of Justice. The ICJ’s
temporary measures are obligatory, and failure to comply constitutes a clear
violation of an international law obligation. However, the ICJ lacks the
resources or process to ensure the execution of its own judgments. In fact,
Article 94(2) of the UN Charter stipulates that if a state fails to fulfil its
duties in accordance with an ICJ ruling, the UN Security Council may take the
necessary steps to implement the ruling [11]. Even if Russia has broken
the core principles of the UN Charter, there remains a remote chance that it
will not suffer legal consequences. This is due to Russia’s veto power in the
UN Security Council and the vagueness of international law.
Therefore, through the above
arguments we can closely observe the position of the United Nations and International
Court of Justice. The charter of UN starts with object to maintain universal
peace and harmony, but the UN contradicts itself when the real testing times
comes. Even though Russia is a permanent member of UN, but it doesn’t give the
idea that it can overpower anyone. Every nation whether it is member or not has
its own territorial integrity which must be respected and protected.
But in the above scenario we can clearly
conclude the silence of UN on the subject matter where the territory of sovereign
state has been threatened by the so-called powerful sovereign and the
international community is just worried about its diplomatic ties. The stance
of UN and ICJ is grey and cannot be accounted to be according to Humanitarian
Laws, for which they advise for. International community together must do
something in this regard and set a powerful precedent so that the future is
secured, humanitarian laws are followed in stricter sense and the world can
think of peace and harmony and move towards the direction of positive
advancement.
This is the best time for the ICJ to
take a stand and set a precedent that no state has the authority to become a
global dominator by the use of force. Therefore, it is imperative that the ICJ
ensures that Russia pays for the damage that it has caused by possessing threat
to the humanity.
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Article Information
Decoding The Russian-Ukraine Conflict From International Law Perspective (By-Shreya Gupta)
Authors: Shreya Gupta
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/07/19
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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