Russia, the Ukraine and the Use of Force

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Russia’s annexation of the Crimea, and its continuing mobilisation of military troops along the Ukraine’s eastern borders, brings into question yet again, the efficacy and relevance of international law’s prohibition on the use of force. Enshrined in Article 2(4) of the UN Charter, it is a cornerstone of the UN’s fragile system of collective security and appeal to multilateralism to maintain peace and security amongst states. Writing in 1970, the late Thomas Franck, Professor of International Law at NYU, asked ‘who killed Article 2(4)?’ In response, Louis Henkin quipped that reports of the death of Article 2(4) were ‘greatly exaggerated’.  While it is true that states have, as Franck noted, ridden roughshod over the standards set by international law, it is notable that Russia – and others – have sought to justify their actions by appealing to international law’s often disputed norms. The Concept of the Foreign Policy of the Russian Federation, a statement on Russia’s core principles of foreign policy approved by Putin in February 2013, states Russia’s commitment to maintaining and strengthening the international rule of law, and somewhat ominously, to countering attempts by some states and groups of states to revise universally recognised norms of international law. Recalling, perhaps, recent tensions concerning Russia’s repressions of LGBT rights, the statement attacks the destructive and unlawful use of “soft power” and human rights concepts to exert political pressure on sovereign states. Instead it commits itself to promoting in international fora, Russia’s approach to human rights (emphasis added). In a comment that should perhaps have sounded alarm bells in the light of Russia’s use of force against Georgia in 2008, the statement also commits Russia to ensuring the comprehensive protection of rights and legitimate interests of Russian citizens and compatriots residing abroad.

 Specifically the statement criticises ‘arbitrary and politically motivated interpretation of fundamental international legal norms and principles’, such as the prohibition on the use of force and the right of peoples to self-determination. Such interpretations, it points out ‘pose particular danger to international peace, law and order.’ These comments appear particularly pertinent today, as we reflect upon the implications for international relations of Russia’s recent actions. In a cryptic blog post last month, Eric Posner of Chicago Law School, sought to break the silence – as he put it – from the international law commentariat. Russia’s actions he noted violated international law but  nothing would be done about it.

His  comment is at least partly true. The legacy of a decade of military interventions by Western powers and expansive interpretations of doctrines of self-defence and of humanitarian intervention, have taken their toll. Appeals to the legality of military interventions to support co-nationals, to support self-determination, and in self-defence, have challenged international laws’ legitimacy and its authority to constrain the self-interest of states as they push at its limits.  The claim that intervention followed an invitation from the now deposed Yanukovych, is a justification that was used to support the use of force by ECOWAS in Liberia and in Sierra Leone.

Russia’s willingness to exploit the contradictions in the practice of states, was evident in 2008 in its use of force against Georgia and the re-ignition of the so-called ‘frozen conflicts’ of South Ossetia and Abkhazia. There is also the legacy of Kosovo’s declaration of independence, and the cautious acceptance of this declaration by the international community, including Ireland. Ireland was however anxious to point to the exceptional circumstances that had led to Kosovo’s declaration, in particular the legacy of human rights abuses. The International Court of Justice, called upon to advise on the legality of Kosovo’s declaration, concluded that the declaration did not violate international law, there being nothing in the general principles of international law that prohibited such declarations. Its opinion, perhaps deliberately, left many questions unanswered, however, including what the legal consequences of such a declaration would be. Looking to the Court’s opinion to give answers to the Crimean situation is, we might say, like ‘Waiting for Godot’. Significantly, of course, Russia did not and does not recognise Kosovo’s declaration of independence.

There are, however, critical differences between Kosovo and the events in Crimea. The people of Kosovo had suffered a history of human rights abuses, particularly in the decade preceding NATO’s intervention, and the adoption of Security Council Resolution 1244. The same cannot be said of the Crimea’s recent history. And, in the Crimea, the holding of the referendum and the subsequent declaration of independence, was possible only with the threat or actual use of force by Russia – in clear violation of international law.

The Security Council, yet again, is unable to act in the face of this latest crisis facing international law. And, with echoes of the 1950 ‘Uniting for Peace resolution’ adopted against the backdrop of war on the Korean peninsula, the UN General Assembly has again stepped in. In a resolution adopted on March 27th, the Assembly underscores that the  referendum held in the Autonomous Republic of Crimea and in the city of Sevastopol, has ‘no validity’, and reiterates the commitment to supporting the territorial integrity of the Ukraine. The Resolution was adopted by an overwhelming majority, with some notable outliers of international law (Sudan, North Korea, Zimbabwe), voting against.

All of this to note that the ambiguities and uncertainties of international law are all too frequently exploited by states to their own ends. Self-interest continues to shape the practice of states, amid growing uncertainty concerning the path to be taken in Eastern Ukraine. Such challenges to the legitimacy and efficacy of international law are not new. While states all too frequently violate international law, they continue, to insist that they are acting in full compliance with its norms and standards, even at the risk, as Thomas Franck put it,  of failing the laugh test’. So too does Russia, and so too does it risk ‘failing the laugh test’.

Siobhán Mullally, Professor of Law, University College Cork and Director of the LLM programme in International Human Rights Law and Public Policy.