The Legality of the 2022 Russian Invasion of Ukraine in the Law of Armed Conflicts

By Bakampa Brian Baryaguma

[Dip. Law (First Class)–LDC; Cert. Oil & Gas–Mak; LLB (Hons)–Mak]

bakampasenior@gmail.com; www.huntedthinker.blogspot.ug

August, 2022

1.                  Introduction

On Thursday, 24^th February, 2022, the Russian Federation (hereinafter ‘Russia’) invaded Ukraine.^[1] Russian president, Mr. Vladimir Putin, declared that he had decided to conduct a ‘special military operation’ against Ukraine, claiming that there was genocide being committed against ethnic Russians in the Luhansk and Donetsk oblasts of Ukraine. Since then, there has been intense fighting in Ukraine, in which thousands of people have died, towns and cities such as Mariupol lie in ruins and 13 million people have been displaced.^[2]

On 26 February 2022, Ukraine filed in the registry of the International Court of Justice (hereinafter ‘the I.C.J.’) an application instituting proceedings against the Russian Federation concerning a dispute relating to the interpretation, application and fulfilment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter the Genocide Convention).^[3] In its application, Ukraine requested the ICJ to indicate provisional measures including Russia immediately suspending the military operations commenced on 24 February 2022 that have as their stated purpose and objective the prevention and punishment of a claimed genocide in the Luhansk and Donetsk oblasts of Ukraine.^[4]

In its ruling of 16 March 2022, the Court, by a majority decision of 13 votes to two,  indicated provisional measures ordering Russia to, among others, ‘… immediately suspend the military operations that it commenced on 24 February 2022 in the territory of Ukraine.’ Russia ignored this ruling and proceeded with its invasion.

2.                  Governing Law

What Russia calls a special military operation is in fact a war. It is an armed conflict in international law jargon. Armed conflicts are governed by international humanitarian law (hereinafter ‘IHL’), which is also known as the law of armed conflict since it acts as the law in war and only applies during armed conflicts.^[5] It is the branch of international law that governs the conduct of war.^[6] IHL limits the use of violence in armed conflicts by sparing those who do not or no longer directly participate in hostilities;^[7] and restricting violence to the amount necessary to achieve the aim of the conflict, which – independently of the causes fought for – can only be to weaken the military potential of the enemy. These guidelines and limitations rose out of the recognition by politicians and soldiers, ‘… that they can achieve many of their objectives if they fight within agreed standards of conduct.’^[8]

3.                  Circumstances of the Invasion

The invasion marked a major escalation of the Russo-Ukrainian War that began in 2014, when Russia invaded and annexed Crimea and Russian-backed separatists seized part of the Donbas region of south-eastern Ukraine, consisting of Luhansk and Donetsk oblasts, sparking a regional war.^[9] In a televised address shortly before the 2022 invasion, Russian president, Vladimir Putin, espoused irredentist views, challenged Ukraine's right to statehood and falsely claimed Ukraine was governed by neo-Nazis who persecuted the ethnic Russian minority.^[10] Before the invasion, President Vladimir Putin, accused N.A.T.O. of threatening Russia’s historic future as a nation, claiming that N.A.T.O. is using Ukraine to wage a proxy war against Russia that is designed to split Russian society and ultimately destroy it.^[11] He therefore demanded that N.A.T.O. turn the clock back to 1997 and reverse its eastward expansion, removing its forces and military infrastructure from member states that joined the alliance from 1997 and not deploy ‘strike weapons near Russia's borders’.^[12] On 21 February 2022, Russia recognized the Donetsk People's Republic and the Luhansk People's Republic, two self-proclaimed breakaway quasi-states in Donbas region. The next day, Russia’s Federation Council authorized the use of military force and troops promptly advanced there.^[13]

4.                  Rationale for the Invasion

In the months preceding the invasion, Russian officials accused Ukraine of Russophobia, inciting tensions and repressing Russian speakers in Ukraine. They also made multiple security demands of Ukraine, the North Atlantic Treaty Organization (N.A.T.O.) and non-N.A.T.O. allies in the European Union (E.U.), including assurances that Ukraine will never join N.A.T.O. Commentators and Western officials described these as attempts to justify war. ‘Russophobia is a first step towards genocide’, President Putin said on 9 December 2021,^[14] arguing that modern, Western-leaning Ukraine was a constant threat and Russia could not feel "safe, develop and exist".^[15] His claims about "de-Nazification" have been described as absurd and Russian claims of genocide were widely rejected as baseless.^[16]

5.                  Purpose of the Invasion

When President Vladimir Putin announced the invasion (codenamed ‘special military operation’) on the morning of Thursday, 24^th February, 2022, he stated its purposes as being to demilitarise and de-Nazify Ukraine, with the aim of protect people subjected to what he called eight years of bullying and genocide by Ukraine's government.^[17] Soon after, another objective was added: ensuring Ukraine's neutral status.^[18] Other government officials spoke of freeing Ukraine from oppression and securing Russia's future place in the world.^[19]

6.                  Effect of the Invasion

The invasion has had serious consequences for the warring parties and the world as a whole. It caused Europe's largest refugee and humanitarian crisis since World War II.^[20] Many people have died on both sides. It pushed agricultural fertilizer prices higher and also caused global food shortages, thereby contributing to increasing food prices globally.^[21] Economic sanctions that were imposed on Russia affected it with its stock market falling, the Russian ruble fell to record lows and Russians rushed to exchange currency. Stock exchanges in Moscow and Saint Petersburg closed until at least 18 March 2022, the longest closure in Russia's history.^[22] Dozens of corporations ceased trading in Russia. Russia cut off the gas supplies of Poland and Bulgaria in retaliation for the West's support for Ukraine.^[23] Consequently, the managing director of the International Monetary Fund warned that the conflict poses a substantial economic risk both regionally and internationally, while the president of the World Bank Group warned of far-reaching economic and social effects.^[24]

7.                  Global Response to the Invasion

The invasion has received widespread international condemnation. The United Nations General Assembly passed a resolution condemning the invasion and demanding a full withdrawal of Russian forces. The I.C.J. ordered Russia to suspend military operations^[25] and the Council of Europe expelled Russia. Many countries imposed sanctions on Russia, which have affected the economies of Russia and the world and provided humanitarian and military aid to Ukraine. Protests occurred around the world; those in Russia were met with mass arrests and increased media censorship, including a ban on the words ‘war’ and ‘invasion’. The International Criminal Court has opened an investigation into crimes against humanity in Ukraine since 2013, as well as war crimes in the 2022 invasion.^[26] N.A.T.O. and the E.U. have taken a strict policy of no boots on the ground in support against the invasion. Consequently, N.A.T.O. as an organization has not supplied weapons to Ukraine and has not sent troops there. But N.A.T.O. member states have given financial and weapons aid to Ukraine,^[27] although they have refused to send troops into Ukraine and objected to establishing a no fly-zone, lest this spark a larger-scale war – a decision some labeled appeasement.

8.                  Legality of the Invasion

Legality in law is a subjective phenomenon because it is dependent on the causes and reasons motivating the matter at hand. The legality of a thing depends upon its lawfulness, as measured against legal requirements and standards. Russia invaded Ukraine saying that there was Russophobia, genocide and Nazism taking place in Ukraine. The legality or lawfulness of the invasion can be determined using a three-factor test: first, the authenticity of the claims; second, violation of international law, particularly the Genocide Convention; and third, failed attempts to resolve the dispute amicably and peacefully.

On authenticity, Russia would have to adduce impeccable evidence of deliberate and concerted actions indicative of Russophobia, neo-Nazism and repression of Russian speakers. This evidence can be in form of statements or documents uttered, with special attention paid to the author, intended or actual addressee and their content. But considering that Ukraine is a democratic country that holds regular, free and fair elections, whose most recent results produced a president (Volodymyr Zelenskyy) of Jewish origin with no ties to any neo-Nazi movement,^[28] these claims are hard to believe. On violation of international law, Russia would have to prove that the acts complained of are legally prohibited. For example, it should be shown that the acts constituting genocide fall within and are illegal under the provisions of the Genocide Convention, thus necessitating intervention to prevent and/or punish them. On failed amicable dispute resolution, Russia would have to prove that all appropriate mechanisms and measures available in law and diplomacy were invoked in futility.

9.                  Conclusion

The Russian invasion of Ukraine is regrettable for the lives lost and properties destroyed. For war to be justified, Russia would have to satisfy the three-factor test above. If Russia honestly felt that there is Russophobia, inciting tensions and repression of Russian speakers in Ukraine, to the extent of committing genocide against indigenous Russian speakers, contrary to the 1948 Genocide Convention, it (Russia) should have first exhausted all peaceful remedial dispute resolution avenues to stop the killings and militant activities, if any.

States should utilize remedial mechanisms like the I.C.J., before resorting to armed confrontations in a bid to resolve their disputes. Since Russia ignored these, it only lends credence to suspicions that President Vladimir Putin is simply on a disguised mission of empire building,^[29] hoping to restore Russia’s lost glory of the defunct Union of Soviet Socialist Republics, the fall of which he saw as the ‘disintegration of historical Russia’.^[30]

 

 References

1.                  Wikipedia, ‘2022 Russian invasion of Ukraine’ (2022). Accessed online at https://en.wikipedia.org/wiki/2022_Russian_invasion_of_Ukraine, on Friday, 19^th August, 2022, at 20:30 hrs.

2.                  Paul Kirby, ‘Why has Russia invaded Ukraine and what does Putin want?’ BBC News (2022). Accessed online at https://www.bbc.com/news/world-europe-56720589, on Friday, 19^th August, 2022, at 20:25 hrs.

3.                  International Court of Justice, Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation).

4.                  Ibid., at 3.

5.                  Fiona Ang, A Commentary on the United Nations Convention on the Rights of the Child, Article 38: Children in Armed Conflicts (2005), at 1511. Accessed online at https://books.google.co.ug/books/about/A_Commentary_on_the_United_Nations_Conve.html?id=TcAqEAAAQBAJ&source=kp_book_description&redir_esc=y, on 31 July 2022, at 20:40 hrs.

6.                  Carolyn Hamilton and Tabatha Abu El-Haj, ‘Armed Conflict: the Protection of Children Under International Law,’ 5 IJCR (1997), at 3.

7.                  Grac’a Machel, Impact of Armed Conflict on Children (1996), at 49.

8.                  Ibid., at 48.

9.                  Wikipedia, supra note 1.

10.              Ibid.

11.              Paul Kirby, supra note 2.

12.              Ibid.

13.              Wikipedia, supra note 1.

14.              Ibid.

15.              Paul Kirby, supra note 2.

16.              Ibid.

17.              Ibid.

18.              Ibid.

19.              Ibid.

20.              Wikipedia, supra note 1.

21.              Ibid.

22.              Ibid.

23.              Paul Kirby, supra note 2.

24.              Wikipedia, supra note 1.

25.              International Court of Justice, supra note 2.

26.              Wikipedia, supra note 1.

27.              On 5 May 2022, Ukraine's Prime Minister announced that his country had received more than $12 billion worth of weapons and financial aid from Western countries since the start of Russia's invasion on 24 February. As a result, on 20 July 2022, Russian foreign minister announced that Russia would respond to the increased military aid as justifying the expansion of the “special operations” front to include military objectives in both the Zaporizhzhia Oblast and Kherson Oblast beyond the original objectives of the oblasts of the Donbas region.

28.              John Kunza, ‘Who is Volodymyr Zelensky, the Jewish president of Ukraine?’ (2022). Accessed online at https://jewishunpacked.com/who-is-volodymyr-zelensky-the-jewish-president-of-ukraine/, on Wednesday, 24^th August, 2022, at 21:12 hrs.

29.              Paul Kirby, supra note 2.

30.              Ibid.