International Law and the War in Ukraine

Speech given at Studium Generale, Tilburg University, 3 March 2022.

I have been invited to say something about the events in Ukraine in the light of the international law on the use of force, and the history of international law.

I will now do my best to present a brief, and hopefully simple, summary of some of the key legal events and developments.

1. Legal summary: Violation of international law.

So I want to start by stating the obvious, the question about the legality of the Russian attack itself.

According to Article 2(4) of the Charter of the United Nations, all States must

refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.

This rule enshrines the general ban on the use of force in international law. The only two exceptions to this case are a collective intervention with the permission of the United Nations Security Council (Chapter VII), as well as every State’s inherent right to self-defense, enshrined in the UN Charter Article 51.

As you probably know, the Russian Federation has no Security Council authorization for its attack. In fact, a week ago, the UN Security Council voted on a draft resolution to Stop the War. The resolution was voted 11 for, 1 against, and 3 abstentions. The one vote against was the veto of the Russian Federation itself.

In contrast, only yesterday the UN General Assembly, in a process called Uniting for Peace, gave a Resolution titled “Aggression against Ukraine”, in which the General Assembly

Condemned the Russian “special military operation” in Ukraine,

Reaffirmed that no territorial acquisition resulting from the threat or use of force shall be recognized as legal,

Deplored in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the Charter; and

Demanded that the Russian Federation immediately cease its use of force against Ukraine and to refrain from any further unlawful threat or use of force against any Member State.

The vote was 141 in support and 5 against. There is no veto in the General Assembly.

Consequently, although there is no conclusive Security Council resolution, the public international opinion among the United Nations seems quite clear: in this war, the Russian Federation is named “the aggressor”, and Ukraine as a victim seems entitled to individual or collective self-defense.

2. Russian justifications

Second, I have been asked to say something about Mr. Putin’s justifications for this atrocity.

Broadly speaking, I see two sets or categories of justifications.

First, there is the broad historical grievance about Russia’s lost superpower standing. This justification is outlined clearly in President Putin’s 5000-word historical essay in the summer of 2021 and in his public speeches this February as he ordered the different phases of his offensive.

The general theme here is that Putin speaks of a “greater Russian nation, which united the Velikorussians, the Malorussians and the Belorussians”. These correspond to the peoples living in Russia, Ukraine and Belarus.

Putin then describes how the Bolsheviks made “a historical mistake” by creating the USSR as a Union of sovereign Republics, and how these Soviet Republics were then allowed to establish their independence in 1991.

It seems that in Mr. Putin’s view, since 1991, Belarus has demonstrated the acceptable way of independence, as a state whose leadership remains obedient to Russian interests. Ukraine, on the other hand, has posed both an insult and a threat as it has sought to approach the West, in particular after the 2013 Euro-Maidan demonstrations.

In Putin’s words, the dissolution of the Soviet Union was a great “geopolitical disaster”, in which the Russia was “robbed” of its territory by these newly independent states.

This historical narrative by Mr. Putin is not recent or new. The reference to a “geopolitical disaster” is from his public speech in 2005. In a speech in Munich in 2007, he criticized the existing international security infrastructure as a Western hegemony. Similar views accompanied the invasion of Georgia in 2008 and the occupation of Crimea in 2014.

This historical revisionist view runs against the formal legal sovereignty of Ukraine, and the principle of non-intervention and sovereign equality.

The internationally recognized sovereignty of Ukraine is clear and uncontroversial. Ukraine first declared its independence in 1917 but was later made a part of the Soviet Union.Nevertheless, Ukraine has been a Member State of the United Nations since 1945. On 19 November 1990, Russia and Ukraine signed a treaty “recognizing each other as sovereign states and obligating themselves to abstain from actions that could harm the state sovereignty of the other Party”. In 1991, Ukraine voted for independence from the USSR, with more than 90 % of the votes in favour.

The Russian president Boris Yeltsin recognized Ukraine in his public address on 2 December 1991; Six days later, Ukraine, Russia and Belarus signed the Agreement for the Commonwealth of Independent States, in which they mutually declared to abolish the Soviet Union and restated each others’ sovereignty. By the end of 1992, more than 120 foreign States had formally and diplomatically recognized Ukraine’s sovereign statehood.

There are no weaknesses, no back doors to dispute the sovereignty and sovereign equality of Ukraine among nations. Putin’s historical demands have no legal basis.

The second track of justifications is more precise, and it appears in the speeches of the Russian diplomats especially in the UN Security Council.

On the 28th of February the Russian delegate Vassily Nebenzia stated to the UN General Assembly:

“Occupation of Ukraine is not part of our plans. The goal of this operation is protection of people who have been victimized and exposed to genocide by the Kiev regime for past 8 years. To ensure this, we will seek demilitarization and denazification of Ukraine, and criminal prosecution for those who committed numerous heinous crimes against civilians, including citizens of the Russian Federation.”

The accusations are severe, but there does not seem to be any real evidence of a genocide by Ukraine in the Donbas area.

This question is perhaps about to be investigated in detail. On the 26th of February, Ukraine filed an application at the International Court of Justice to institute proceedings against the Russian Federation on these allegations of genocide. The case is based on the UN Genocide Convention, to which both Russia and Ukraine are parties.

In its Application, Ukraine explains that the Russian Federation has attacked Ukraine on the grounds of a false accusation of genocide; it demands that these accusations be investigated and proven wrong, and the Russian attack stopped and declared illegal.

For immediate relief, Ukraine has also demanded that the Court order the Russian Federation to halt their attack as a Provisional Measure for the duration of the case. The initial hearings on the case will be held next week at the Hague.

So ladies and gentlemen, you see here an opportunity to investigate the allegations of genocide in a perfectly civil manner – through the International Court of Justice. The violence and the destruction are absolutely not necessary nor justified in any manner whatsoever.