Debunking Russia’s international law justifications

News: Russian invasion of Ukraine is not justified under any circumstance. Russia has disrespected the UN charter and many other international laws.

What is the belief of Russia?

Russia has relied on a theory of remedial secession. The theory provides for the unilateral secession of a territory from the parent state in the most extreme cases.

However, the theory was most relevant in the case of decolonisation. It could have been used by Russia in case of severe violations of human rights and systemic oppression. But none of the allegations could be proved.

It first declared provinces in Ukraine, independent and then sent its forces as peacekeepers. The peacekeepers were sent to protect ethnic Russians. Ukraine has moved to the International Court of Justice to counter allegations of the genocide of Russians.

Coming to the independence of breakaway provinces, Ukraine agreed to the Minsk accord to recognize the independence of Luhansk and Donetsk. But Russia unilaterally declaring them independente is a clear violation of Article 2(4) of the UN Charter.

Why the Russian actions are not justified?

Violation of UN Charter: Russian missile strikes and Russian forces invading Ukraine are a violation of Article 2(4) of the UN Charter. Article 51 recognizes the right of self-defense but Ukraine has not attacked Russia. Further, the right to collective self-defense under article 51 exists only for states, and Donetsk and Luhansk are not states under international law.

Humanitarian intervention: Russia has invoked a controversial doctrine of right to protect or Responsibility to Protect (R2P). This principle has often been used to justify use of force by third states in territory of a state which has failed to protect its citizens. Such actions may or may not be authorized by even Security Council. For example the 2011 military intervention in Libya received UN authorization while 1995 NATO bombing of Bosnian Serbs did not. In the present case, there is no evidence that ethnic Russians in Ukraine are facing atrocities.

Why International Criminal Court is unable to exercise its jurisdiction?

Russian actions can be defined as crime of aggression as stated under Article 8bis (2) of Rome Statute. However, ICC can not exercise jurisdiction until both the aggressor state and victim are party to the Rome statute.

What should global community do?

Russia believes in sphere of influence and notion of some countries having limited or partial sovereignty.  Russia views Ukraine as possessing limited sovereignty.

This also is a threat to the rule based order created after World War II. Russia has used cultural and civilizational exceptionalism to over ride rule of law. For example, Russian Constitutional Court can invalidate any judgement by Human rights mechanisms.

The global community should come together to check the rise of arbitrary state power and check the imperial rise of power.

Source: This post is based on the article “Debunking Russia’s international law justifications” published in The Hindu on 3rd March 2022.