A perversion of both the facts and the law”

Russian attempts to invoke international law dismantled

Professor Marc Weller, a leading expert on international law who has advised on a large number of conflict negotiations, debunks in turn Russia’s attempts to invoke international law.

Published 9 March 2022

This is an extremely dramatic moment: it is the first time we have had such a fundamental challenge to the prohibition of the use of force, which is the key civilizational achievement of the past centuries.  

Previous events involving the use of force were somehow justified with reference to international law as we know it: be it the 1441 Resolution on Iraq, humanitarian intervention as a proposed justification for the use of force in Kosovo, or self-defence, normally invoked whenever force is use, even if potentially unlawfully.  

Here we have an episode that leads us to ask whether we have been catapulted back to a point in human civilization that we thought we had left behind.

It used to be that one would ride a glorious charger into war, swing a sabre, do heroic deeds and come back home to be bedecked with medals. It was considered a great and glorious pursuit.

It took the disasters of the 20th century and the two World Wars to teach us that war is no longer – and can no longer be – a means of national policy. On the face of it, the Russian invasion appears to brush this aside, the first large scale armed action since 1945 to do so. 

That is why, in addition to the immediate and appalling suffering of the Ukrainian people, all of us are so tremendously shocked and worried at the deepest level. Mr Putin seems to have dissolved what was a civilizational consensus.

This concern impelled me to ask if any attempt at legal justification – however controversial, contested and ultimately unpersuasive it would be – has or could be put forward by the Russian government. Or whether it really is just naked war and aggression, with all consideration for international law abandoned entirely.

For that purpose, I have gone through the debates triggered by Russian uses of forces over the past twenty years to see what was formally argued. I looked at Russia’s justifications in relation to Georgia, Abkhazia, South Ossetia, the Donbas and Crimea crises of 2014, and the latest discussions in the UN Security Council and in the emergency session of the UN General Assembly.

Previous episodes of Russian aggression could in some way – even if there was a sense we were talking about unlawful uses of force – still be brought back into the fold of international law, with some considerable effort afterwards.

They were at least presented in terms of the prohibition of the use of force, and therefore could in some way be explained consistently with some sense of international lawfulness.

The current invasion, however, goes so far outside and beyond what we've heard before that we are looking at a fundamental challenge to international law, as we understand it.

This is an extremely serious challenge to our understanding of what world order means

Four types of justification have been put forward by Russia. To those of us who work on the prohibition of the use of force, and acceptable exceptions to the prohibition, they appear alien. 

The first is a humanitarian intervention in defence of the supposed states of Donetsk and Luhansk, and the people within. An argument we have seen before in relation to South Ossetia and Abkhazia.

Here it has been argued that the people of Donetsk were subjected to attacks for the past eight years. The figure of 14,000 victims over this period, one invoked by Ukraine, has also been invoked by Russian representatives in the UN Security Council.

Russia argues that the Minsk process – the attempt at an avenue to address this crisis – was fruitless, that Kyiv refused direct talks with the local authorities, and therefore it is now clear there is no further possibility of peaceful settlement.

Of course, the reason Ukrainian authorities were unwilling to have such direct talks was the condition of accepting Russian interlocutors representing two “sovereign states” – Donetsk and Luhansk – that are, in fact, part of Ukrainian territory. They are not states and their representatives must not be recognized as such. Moreover, throughout this time, there were armed actions launched – in the main – by Russia.

But Russia argues that they were now convinced that they could no longer let the people of these two regions suffer, and therefore had to intervene.

As in previous episodes relating to Georgia and Crimea, there is a gleeful reproduction of the arguments put by Western states and NATO on the occasion of humanitarian intervention in Kosovo.

Great play was made in the Security Council of this supposed parallel, but of course that is part of the problem with many of the Russian arguments: it takes the shape of a previous justification and applies it to circumstances that are entirely different.

Permanent Representative of the Russian Federation to the UN addresses the Security Council meeting on Ukraine at the end of January.

Permanent Representative of the Russian Federation to the UN addresses the Security Council meeting on Ukraine at the end of January.

In relation to Kosovo, there was a genuine humanitarian emergency of vast proportions: half of the population forcibly displaced, and the concern that the genocide from Bosnia-Herzegovina would be replayed in that territory. The emergency had been duly attested in Chapter VII Security Council Resolutions. Action was limited to implementing the aims enunciated in those texts, even if the authority to use force had to be based on the doctrine of humanitarian intervention.

There was no genocide perpetrated against the people of Donbas. No overwhelming humanitarian emergency existed. If anything, local provocations emanated from the Russian-supported forces. In fact, throughout, significant numbers of Russian forces were present in the territory.

The second Russian justification is a self-defence operation at the request of Luhansk and Donetsk.

These two entities began declaring themselves states as far back as 2014. However, only now, on the very eve of the invasion, does the Russian Federation suddenly recognise them as states, so as to instantly conclude a defensive treaty with them, and receive a request for collective self-defence and use force, supposedly on their behalf, and answer it positively that very second.

This is a sham, and all have recognized it, including the UN General Assembly which has rejected this move by a vote of 141 states.  

So recognition of the two territories as states as the outcome of use of force is, of course, unlawful. They are ‘non-states’: positively obliged not to exist by virtue of international law, and even less able to invite – lawfully, under Article 51 of the UN Charter – self-defence. Moreover, even if it were self-defence, the legal principle of ‘necessity and proportionality’ would apply. This does not cover the massive invasion of all of Ukraine.

This is the Orwellian Ministry of Truth speaking

Thirdly, we have the oddest and most cynical justification from Russia – that it is defending the people of Ukraine. They seriously argued in the UN Security Council that what they call the “Maidan coup” of 2014 was unconstitutional, brought an illegal clique into office, and that Russia’s “special military operation” is only directed at that clique rather than the population of Ukraine.

Russia appears to argue that their war is a form of pro-democratic intervention, trying to save the Ukrainian people from their own citizens. Added to this is the language of “denazification and demilitarisation”, seeking to justify forcible regime change in Ukraine against the democratic will of the people.

Finally, we have a very strange rendition of the doctrine of self-defence as applied to Russia itself. It is argued that Russia announced the Ukrainian intention to acquire nuclear weapons at the recent Munich Security Conference. There is zero evidence for this. Since then, we have also heard claims that Ukraine was attempting to develop biological weapons, again without any evidence at all.

It is of course Ukraine that gave up the nuclear weapons it inherited from the Soviet Union and instead received a security guarantee from the Russian Federation – one that has now been so blatantly violated.

Russia argued that a major foreign military presence in Ukraine would be a threat that had to be “answered swiftly and decisively”. Presumably this relates to the possibility of NATO accession for Ukraine.

This is an extension beyond pre-emptive war and into preventative war: the claim that at some future stage there would be a gathering danger, one it is necessary to answer now when this is more easily possible. It is a total reversal of the doctrine of self-defence and the requirement that force may only be used if strictly necessary to answer an actual or imminent armed attack.

Russia has also alleged attacks by Ukrainian forces, terrorists and saboteurs against Russia itself – the ‘false flags’ the Americans warned of – which hardly sound credible given that, at the time, Ukraine was surrounded by 200,000 heavily armed Russian forces.

But even if so, this would be considered a so-called ‘armed incident’, rather than the more serious ‘armed attack’ that would trigger self defence under Article 51. And, once again, ‘necessity and proportionality’ would apply. Even if true, this would in no way furnish a justification for the wholesale invitation of Ukraine.

The Russian representative in the General Assembly emergency session concluded that Russia is: “exercising its right to self defence from a regime that sought to recover access to unique nuclear weapons. At the same time, Ukraine pursues NATO membership and has territorial claims to Russia” – one presumes in relation to the Ukrainian territory of Crimea – “so by activating Article 51 of the Charter, Russia not only protects itself from a nationalist threat but also recovers validity of the goals and principles of the UN Charter, and provides for full implementation of the main tasks of the United Nations: prevention of a new World War.”

This is the Orwellian Ministry of Truth speaking. It is a perversion of both the facts and the law, and therefore it does mean a significant stepping out of the dialogue, which – in crises and conflicts – we are used to as international lawyers; one that is conducted within a framework of reference we would normally recognise. Sadly, this is an extremely serious challenge to our understanding of what world order means and what international law does to try and safeguard it.

Marc Weller is Professor of International Law and International Constitutional Studies and is the former Director and a Fellow of the Lauterpacht Centre. He has served as Counsel in the International Court of Justice and as a Senior Mediation Expert for the United Nations.

Read further analysis from Marc on the invasion of Ukraine at the New Law Journal.

Top image: the UN Security Council votes on a political transition process for Syria in 2016. Credit: United Nations.