By Aiman Smagulova
Edited by: Muhammed Hani Ahsan and Katie Farrell
Graphic by: Norie Wright
Russia’s invasion of Ukraine in February 2022 has numerous ramifications for international relations and the global economy. Russia justified the Special Military Operation as an attempt to prevent genocide against ethnic Russians in Eastern Ukraine. This article will interrogate the legality of using force to prevent genocide in international law and politics. While the use of military force to stop widespread atrocities is generally accepted, for any intervention to be legally justified certain criteria must be met. Russia has a weak case for the intervention being preemptive or an act of collective self-defense. Russia also lacks sufficient justification for its military intervention under the R2P doctrine. Military interventions aimed at averting suffering or genocide challenge state sovereignty, non-intervention, and non-use of force principles necessitating that states adhere to international law.
Background
On February 26, 2022, Ukraine filed an application against the Russian Federation at the International Court of Justice (ICJ), the judicial arm of the United Nations, concerning “a dispute . . . relating to the interpretation, application, and fulfillment of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide”.1 Ukraine believed that Russia illegally commenced a special military operation based on unfounded allegations of genocide in the Luhansk and Donetsk oblasts. Russian President V. Putin’s address on February 24th, 2022 notes that Russia is carrying out a special military operation to “protect people who, for eight years now, have been facing humiliation and genocide perpetrated by the Kyiv regime”.2 According to V. Putin, Russia was not planning to occupy Ukraine but intended to prevent the genocide in Luhansk and Donetsk.3 To achieve this goal, Moscow was “seeking demilitarization and denazification of Ukraine”.4
Referring to the reports of the Office of the United Nations High Commissioner for Human Rights (OHCHR), Ukraine claimed that there is no reasonable evidence of genocide. The Ukrainian government believes that Moscow made a “false claim of genocide as a basis for actions on its part that constitute grave violations of the human rights of millions of people across Ukraine”.5 The situation became more challenging in light of Moscow’s recognition of Luhansk and Donetsk as independent republics6 and the occupation of Crimea in 2017.7
Ukraine requested that the ICJ establish provisional measures to avert “irreparable harm” caused by the Russian invasion.8 Russia refused to participate in the provisional measures stage of the proceedings objecting to ICJ jurisdiction on the grounds of a lack of dispute, a lack of jurisdiction ratione materie, and the inadmissibility of the case. While it might be surprising that parties involved in a full-scale war are considered not to have a ‘dispute’, the standard of the ICJ requires that their views are “positively opposed” by the applicant.9 Moreover, Russia claimed that their military intervention was not a violation of the Genocide Convention.
Russia’s second preliminary objection was that Ukraine could not refer to the legality of the special military operation within the context of the Genocide Convention. The use of force and recognition of states are out of the Convention’s scope.10 Furthermore, Russia argued that the ICJ cannot entertain Ukraine’s claim since it needs the “consent of those States to its jurisdiction”.11 The ICJ cannot recommend provisional measures if the court’s jurisdiction cannot be established.12 In other words, Russia attempted to divert the jurisdiction to avoid further proceedings.
On March 16, 2022, the ICJ, per Article 41 of its Statute indicated provisional measures13 that “the Russian Federation shall immediately suspend the military operations it began on February 24, 2022, in the territory of Ukraine”.14 It is worth mentioning that the principal judicial organ of the UN lacks an enforcement mechanism. The parties could take the case to the United Nations Security Council (UNSC), but permanent members, including Russia, can undercut the ICJ’s decision with the veto power. An analogous situation occurred in 1986 when the United States refused to follow the ICJ decision in Nicaragua v. the United States on financing military and paramilitary activities in Nicaragua. The United States voted against the UNSC Resolution.
With the proceedings between Ukraine and Russia still ongoing and the two countries engaged in a war spanning most of Ukraine, it is impossible to predict the ICJ’s position. However, the present case raised the question of the use of force to prevent genocide, which is outside the scope of the UN Charter.
The Legal Ground for Ukraine’s Claim
Article IX of the Genocide Convention outlines the ICJ’s jurisdiction on disputes relating to the interpretation, application, or fulfillment of the international treaty, including the state’s responsibility for genocidal acts enshrined in Article III.15 The primary condition for the ICJ to exercise its judicial function is the existence of a dispute, which is defined as “a disagreement on a point of law or fact, a conflict of legal views and interests”.16 Since Ukraine and Russia “hold opposite views concerning the question of the performance or non-performance of international obligations” the present situation could be qualified as a dispute.17 The ICJ concluded that at the current stage, Ukraine could invoke the Genocide Convention ratione materiae as a reason to involve the ICJ. 18
Ukraine claimed that Russia’s special military operation ignited these aforementioned acts of genocide. In a similar vein, the Permanent Representative of the Russian Federation to the European Union pointed out that Russia’s “peace enforcement special military operation” was aimed at de-Nazification, adding that people had been actually “exterminated” and that “the official term of genocide as coined in international law [if one] read[s] the definition, . . . fits pretty well”.19
Genocide is a crime under international law.20 The crime of genocide represents an act committed with the intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.21 The same definition is contained in the Rome Statute of the International Criminal Court (ICC).22 According to Art. I of the Genocide Convention, states should “prevent and punish” genocide. Judge Lauterpacht interpreted this provision as “a party, obliged to prevent genocide within its own territory,” and “is not obliged to prevent it in a territory which it invades and occupies”.23 However, the ICJ in Bosnia and Herzegovina v. Serbia, considering the issue of genocide against Bosnian Muslims, outlined that the states have a duty to “employ all means reasonably available” to prevent genocide outside their territory.24
Preventing genocide outside the state’s territory correlates with the doctrine of international responsibility, as violations of erga omnes—obligations towards the international community—could cause any state to consider itself “injured” and resort to countermeasures25 (International Law Commission 2001. Art.48. Chapter II). It is widely recognized in international law that outlawing genocide represents an erga omnes obligation, but the countermeasures should be peaceful and abstain from the use of force.26 Therefore, Russia’s position that it launched a special military operation in Ukraine due to a breach of erga omnes obligations lacks its legal basis.
This evokes a parallel with another case when NATO, in violation of Chapter VII of the UN Charter, used force to prevent genocide in Kosovo in 1999. Former Russian President B. Yeltsin called NATO’s operation “nothing other than an open aggression”.27 Almost 25 years later, Russia referred to this case in its proceedings against Ukraine. It argued that NATO member states similarly “attacked Yugoslavia under the pretext of preventing genocide”28.
Self-defense clause
It should be pointed out that NATO’s expansion to Eastern Europe “close to Russia’s borders” also provoked the Russian invasion of Ukraine.29 President V. Putin argued that the expansion of NATO’s infrastructure or “efforts to gain a military foothold of the Ukrainian territory” are unacceptable since they threaten the existence of Russia’s statehood and sovereignty.30
The Russian government claims that NATO’s expansion into Eastern Europe “merely serves as a tool of US foreign policy”.31 Russia launched the special military operation per Art.51 of the UN Chapter, and the treaties of friendship and mutual assistance with the Donetsk People’s Republic and the Lugansk People’s Republic. It is crucial to discuss Russia’s argument for self-defense. Russia attempts to justify the use of force through the preemptive self-defense doctrine articulated by the Bush administration meaning that states can take action to defend themselves against forces that present an imminent danger of attack.32 Nonetheless, preemptive self-defense against an armed attack that has not yet occurred should meet certain requirements. This measure should be “necessary, instant, overwhelming leaving no choice of means, and no momentum of deliberation”.33 There are no grounds for Russia’s claim that the special military operation was a necessary measure against NATO’s expansion and that all peaceful means of conflict resolution were exhausted.
Another argument in President Putin’s speech is collective self-defense. The validity of the argument depends on the legality of the Donetsk and Luhansk oblasts of Ukraine to declare independence. Following the Crimean scenario, Russia recognized Donetsk and Luhansk as independent states, although recognition is declarative.
Remedial secession is one of the most controversial issues in international law due to its interdependence with territorial integrity and self-determination principles. The 1970 Declaration of Principles stipulates that self-determination:
shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed with a government representing the whole population belonging to the territory without distinction of any kind.34
The Declaration stipulates that self-determination can be exercised within an existing state.35 It is noteworthy that Russia has always been a proponent of territorial integrity, criticizing remedial secession. In the Kosovo case, Moscow argued that one of the conditions of the secession could be an “outright attack by the parent state, threatening the very existence of the people in question”.36 Additionally, Russia claimed that Kosovo Albanians could not be qualified as “people”.37 Subsequently, “all efforts should be taken to settle the tension between the parent State and the ethnic community concerned within the framework of the existing State”.38 In a similar vein, there was no “threat to the very existence” of the people living in Donetsk and Luhansk. Unlike Kosovo Albanians, the population of these eastern oblasts could not constitute “people” different from those living in the whole territory of Ukraine. Finally, if tension exists between Ukraine and the Donetsk and Luhansk oblasts, they should resolve the tensions within the existing state of Ukraine.
Responsibility to Protect (R2P)
Despite the controversy over the legality of NATO’s military operation in Kosovo, it was justified as a “humanitarian intervention,” “humanitarian war,” and reframed in the Responsibility to Protect (R2P) doctrine. This doctrine, formulated in response to the UN’s failure to respond effectively and promptly to humanitarian tragedies in Rwanda, Burundi, Bosnia, and Kosovo, underscores the significance of protecting populations from genocide, war crimes, ethnic cleansing, and crimes against humanity.
R2P is based on three main pillars: the responsibility to protect the population from genocide, war crimes, crimes against humanity, and ethnic cleansing; the community’s responsibility to support individual states in fulfilling their responsibilities; and the international community’s obligation to be ready to take collective action if a state is ill-equipped to do so.39 The R2P doctrine contradicts the fundamental principle of international law—non-intervention, which “involves the right of every sovereign State to conduct its affairs without outside interference”.40 However, it is justified by the idea that state sovereignty implies responsibility for the population. If a state is unwilling or unable to do that, “the principle of non-intervention yields to the international responsibility to protect”.41
Although military operations in the context of R2P are extreme and exceptional cases, they also challenge the non-use of force principle. The jus cogens rule, the peremptory norm, is the non-use of force among states “from which no derogation is permitted” unless the de facto international law would alter a proposed reaction.42 This central principle of international law, enshrined in Article 2(4) of the UN Charter, has some exceptions. Art. 51 of the UN Charter recognizes the right to individual and collective self-defense in response to armed attack.43 To reconcile the tension between the R2P doctrine and the non-use of force principle, military operations in the context of R2P should be the last resort after diplomatic, humanitarian, and peaceful measures.
Second, the use of force should be authorized by the UNSC under Chapter VII of the UN Charter. A military intervention should have a ‘just cause’ to halt large-scale loss of life or ethnic cleansing caused by an action or omission of the state. Use of force cannot be initiated to alter borders, support groups for self-determination, overthrow regimes, or occupy territories. Moreover, the planned military intervention’s scale, duration, and intensity should be the minimum necessary to secure the humanitarian objective.44 Eventually, “military action can only be justified if there is a reasonable chance of success, specifically in halting or averting the atrocities or suffering that triggered the intervention in the first place”.45
In the present case, Russia did not invoke the concept of R2P to justify its invasion of Ukraine for several reasons. First and foremost, there is “no inherent rule in international law granting one state an automatic right to invade another state to stop a genocide”.46 Additionally, Moscow did not utilize diplomatic channels to present its allegations of genocide to the UN. To assert that R2P is relevant, Russia must effectively argue that the threat to Russian-speaking individuals in eastern Ukraine warranted the use of military force. Russia must also seek approval from the UN Security Council for collective military action. Notably, Russia made no effort to seek such approval. Finally, the purpose of the special military operation was to legitimize territorial acquisition rather than genuinely aim to protect the population of Ukraine from serious crimes.
Conclusion
In contemporary international law and politics, the use of military force to stop widespread atrocities and ethnic cleansing is generally accepted. However, for such intervention to be legally justified, certain criteria must be met. The International Court of Justice will likely address this matter in its upcoming proceedings.
At this stage, it appears that Russia could not justify its special military operation as either preemptive or collective self-defense. It was not necessary and proportionate to the alleged threat emanating from NATO. Moreover, Russia lacks sufficient justification for its military intervention in Ukraine under the R2P doctrine. Moscow did not exhaust all peaceful means before launching a military intervention. It has also not sufficiently proven the existence of an extreme case of alleged genocide in Ukraine or demonstrated the gravity of the situation. Moscow’s rationale, which includes references to self-determination, self-defense, and general accusations of discrimination against the Russian-speaking population, falls short of establishing the necessary intention to prevent human suffering. Military intervention that halts or averts human suffering challenges state sovereignty, non-intervention, and non-use of force principles. Therefore, states should adhere to their international commitments in good faith and refrain from misinterpreting international law.
References
[1] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States Intervening). Application Instituting Provisions (International Court of Justice February 26, 2022).
[2] Vladimir Putin, “Address by the President of the Russian Federation,” President of Russia, February 24, 2022, http://en.kremlin.ru/events/president/news/67843.
[3] Ibid.
[4] Statement and reply by Permanent Representative Vassily Nebenzia at UNSC briefing on Ukraine, 23 February 2022, https://russiaun.ru/en/news/230222un.
[5] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States Intervening). Application Instituting Provisions (International Court of Justice February 26, 2022). P.14. Para 24.
[6] “Signing of Documents Recognizing Donetsk and Lugansk People’s Republics,” President of Russia, February 21, 2022, http://en.kremlin.ru/events/president/news/67829.
[7] Putin, Vladimir. 2014. “Address by the President of the Russian Federation.” President of Russia. March 18, 2014. http://en.kremlin.ru/events/president/news/20603.
[8] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Request for Indicating Provisional Measures (International Court of Justice February 27, 2022). Para 38.
[9] Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India) (International Court of Justice October 5, 2016). Para 38.
[10] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Document (with annexes) from the Russian Federation Setting out Position Regarding the Alleged “the lack of Jurisdiction” of the Court in the Case. (International Court of Justice March 7, 2022). P.2.
[11] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Document (with annexes) from the Russian Federation Setting out Position Regarding the Alleged “the lack of Jurisdiction” of the Court in the Case. (International Court of Justice March 7, 2022). P.2; Case Concerning Eat Timor (Portugal v. Australia) (International Court of Justice June 30, 1995). P.90. Para 26.
[12] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Document (with annexes) from the Russian Federation Setting out Position Regarding the Alleged “the lack of Jurisdiction” of the Court in the Case. (International Court of Justice March 7, 2022). Page 2. Para 6.
[13] International Court of Justice. “Statute of the Court of Justice | International Court of Justice.” www.icj-cij.org, 1945. https://www.icj-cij.org/statute.
[14] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation). Request for the Indication of Provisional Measures. Order of the ICJ. (International Court of Justice March 16, 2022). P.215. Para 14.
[15] Art. III, “Convention on the Prevention and Punishment of the Crime of Genocide.” United Nations, December 9, 1948.
[16] Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria: Equatorial Guinea intervening) (International Court of Justice November 6, 2002). P. 325. Para 89.
[17] Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia), Preliminary Objections, Judgment, I.C.J. Reports 2016 (I) p. 26, para. 50, citing Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950. P. 26. Para. 50
[18] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening). Request for Indicating Provisional Measures (International Court of Justice February 27, 2022). Page 219. Para 29.
[19] “Interview by Permanent Representative of Russia to the EU Ambassador Vladimir Chizhov for Euractiv | Russian Mission” n.d.
[20] United Nations, General Assembly, the Crime of Genocide, A/RES/96(I) (1 Dec. 1946), available from https://digitallibrary.un.org/record/209873?ln=en
[21] Art. II, “Convention on the Prevention and Punishment of the Crime of Genocide.” United Nations, December 9, 1948.
[22] Art. 6. International Criminal Court, “Rome Statute of the International Criminal Court” (International Criminal Court, July 17, 1998), https://www.icc-cpi.int/sites/default/files/RS-Eng.pdf.
[23] William A Schabas, Genocide in International Law (Cambridge University Press, 2000). P. 494
[24] Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro (International Court of Justice February 26, 2007). P. 221. Para 430.
[25] Art.48, Chapter II, “Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries 2001,” 2001, https://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf.
[26] Case Concerning the Barcelona Traction, Light and Power Company, Limited (International Court of Justice February 5, 1970). P. 33. Para 34.
[27] Smith, Martin A, and Paul Latawski. The Kosovo Crisis and the Evolution of a Post-Cold War European Security. Manchester University Press, 2013.
[28] Case Concerning Allegations of Genocide under the Convention of the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States Intervening). Verbatim Record. (International Court of Justice September 25, 2023).
[29] Vladimir Putin, “Address by the President of the Russian Federation,” President of Russia, February 24, 2022, http://en.kremlin.ru/events/president/news/67843.
[30] Ibid.
[31] Ibid.
[32] The White House. 2007. “The National Security Strategy 2002.” Archives.gov. November 4, 2007. https://georgewbush-whitehouse.archives.gov/nsc/nss/2002/.
[33] Ruys, Tom. 2013. “Armed Attack” and Article 51 of the UN Charter : Evolutions in Customary Law and Practice. Cambridge: Cambridge University Press. P.323
[34] United Nations, General Assembly, Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, A/RES/2625(XXV) (1971), available from https://digitallibrary.un.org/record/202170?ln=en
[35] Supreme Court of Canada. 1998. Secession of Quebec. Vol. 2 S.C.R. 21. Para 123.
[36] Accordance with International Law of the Unilateral Declaration of Independence by the Provisional Institutions of Self-Government of Kosovo. Written Statement by the Russian Federation . 2009. International Court of Justice. P.32
[37] Ibid.
[38] Ibid.
[39] The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty, 2001.
[40] United Nations. “United Nations Charter,” 1945. https://www.un.org/en/about-us/un-charter; see also: United Nations, General Assembly, Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty,” , A/RES/20/2131 (21 Dec. 1965), available from https://www.ilsa.org/Jessup/Jessup15/Declaration%20on%20the%20Inadmissibility%20of%20Intervention%20in%20the%20Domestic%20Affairs%20of%20States%20and%20the%20Protection%20of%20Their%20Independence%20and%20Sovereignty.pdf; “Montevideo Convention on the Rights and Duties of States.” 1933. https://www.ilsa.org/Jessup/Jessup15/Montevideo%20Convention.pdf; Case concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America). Merits. 1986. International Court of Justice. P.96. Para 202.
[41] The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty, 2001. P. XI
[42] United Nations, General Assembly, Report of the International Law Commission. Seventy-First Session Supplement No. 10 ” , A/71/10 (2 May-10 June and 4 July-12 August 2016), available from https://legal.un.org/ilc/reports/2016/english/a_71_10.pdf; Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) (International Court of Justice February 3, 2012). P.141.
[43] United Nations. “United Nations Charter,” 1945. https://www.un.org/en/about-us/un-charter
[44] The Responsibility to Protect. Report of the International Commission on Intervention and State Sovereignty, 2001. P.37.
[45] Ibid.
[46] Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro (International Court of Justice February 26, 2007). P.221. Para 430.