08.02.22
[Marc Weller is Professor of International Law and International Constitutional Studies at the University of Cambridge and Editor of the Oxford Handbook on the Use of Force in International Law.]
The international rules on the use of force are simple. Force may never be employed as a means of international policy. Force is only available by way of self-defence, if specifically authorized by the UN Security Council or, arguably, when strictly necessary to avert an overwhelming humanitarian emergency.
Oddly, this consensus survived the difficult years of Cold War confrontation. Since then, the prohibition of the use of force has come under some pressure. So-called new threats, like cyber attacks or terrorism employing weapons of mass destruction, have strained the previously restricted criteria for the application of the right to self-defence. Yet few of these uncertainties apply in case of Russia’s muscular diplomacy vis-à-vis Ukraine and the West.
Thus far no force has been used. There is just the impressive spectacle of building up a threatening scenario around the Ukraine, coupled with demands concerning NATO troop deployments in Eastern Europe and potential Euro-Atlantic integration for Ukraine.
The prohibition of the use of force contained in Article 2 (4) of the UN Charter also expressly covers the threat of force. This was re-emphasized in the Nuclear Weapons Advisory Opinion issued by the International Court of Justice. However, coercive diplomacy in itself is not necessarily prohibited.
Three conditions must be met for a violation to occur. First, the threat of the use of force must be backed by potent military deployments, proving that the offending state has the actual capacity to make good its threat. Clearly, that is the case in this instance, with the deployment of in excess of 100,000 battle-ready Russian troops on the border with Ukraine.
Second, there must be a definite political demand addressed to the state under threat. Russia has clearly issued its demands. However, these are addressed to Western States and NATO, not the likely victim of the possible use of force, which is Ukraine.
Third, the threat of the use force must be explicit and directly connected to the demand. In this instance, Russia has implied the threat through its military deployments, but it has not clearly indicated that it will use force unless its demands are met by NATO states. Indeed, it has denied that it intends to use force.
Are there any possible justifications for the threat or use of force should it come to that in this instance? First, there is the possible justification of self-defence. Russia claims to be acting in the face of an ever more threatening posture of NATO forces surrounding it.
However, self-defence is only permissible in response to an armed attack. It can be invoked just before an armed attack takes place if it is evident that it will definitely occur. The victim state is not required to suffer a first, potentially devastating blow, before it can respond.
This requires three triggers. Again, the aggressor state would have put in place all the military hardware necessary to launch an overwhelming attack and placed its forces is a position to mount such an attack instantly. In addition, there must be incontrovertible evidence that the decision to actually launch the attack has been taken. Third, the attack must be imminent, leaving no means to address it other than by anticipating it forcibly. For instance, there would be no prospect of effective action from the UN Security Council.
In short, anticipatory self-defence becomes available at the last moment when it is still possible to disrupt a chain of events that will inevitably result in military aggression of some scale and intensity. We may be coming closer to this point at present, but we are not there yet.
Of course, in any event, there is no overwhelming, imminent threat of military aggression facing Russia. Instead, it is Russia that has deployed overwhelming force on the borders of Ukraine.
There is evidence from past practice concerning Georgia and Ukraine itself that Moscow is indeed quite willing to use force unlawfully. And, at least Western intelligence reports claim, there is evidence suggesting that President Vladimir Putin has actually taken the decision to launch an attack. The deployment of field hospitals and other items not usually felt necessary for mere military exercises seems to support that assessment.
Nevertheless, the Ukrainian leadership would obviously be ill-advised to respond by launching a pre-emptive attack, invoking the doctrine of anticipatory self-defence, and there is no evidence that it might do so. Yet, this would be precisely the provocation Moscow may be looking for.
This was the harsh lesson learnt by Georgia in 2008. Its forces entered its own province of South Ossetia, held by local rebels with the support of Russian ‘peace-keepers.’ In response, Russia sent a massive force held in readiness near the border for just such an event. It permanently detached South Ossetia from Georgia. For good measure, it also forcibly took control over the region of Abkhazia, which had not even been involved in this particular episode.
It seems, though, that Russia is not expecting the authorities in Kiev to fall into this trap. Instead, according to US intelligence reports, Moscow has prepared fake video footage, seemingly showing Ukrainian forces on the attack in the Donbas region. This would be invoked to justify Russia’s own aggressive incursion into the region or beyond.
Even if genuine, a Ukrainian use of force in Donbas would of course be directed against its own territory, even if held by rebel forces supported by Russia. Legally speaking, it would be akin to an internal police action, even if it involves armed action. This would not trigger a right on the part of Russia to respond in self-defence. Hence, a different legal strategy would be required.
When capturing Georgian territory, President Putin’s spin doctors suggested that an intervention had become necessary in order to preserve the population of South Ossetia from its own government. Without any factual backing, it was alleged that the Georgian intrusion into the province was targeting the civilian population, rather than the occupying forces. The terms used on that occasion were directly borrowed from NATO’s justification of its humanitarian intervention against Serbia in relation to Kosovo.
Of course, the two situations cannot be compared. In 1999, Serbia had indeed launched an intensive campaign of repression, killing and forced displacement against the mainly ethnic Albanian population of Kosovo, then still under its control. There were no such circumstances conceivably triggering the doctrine of forcible humanitarian action present in South Ossetia nearly a decade later.
Another concern is the progressive ‘passportization’ of population segments in neighbouring territories—a further Moscow ploy applied in relation to Georgia and some other states. In bestowing Russian nationality on a large segment of a foreign population, the Kremlin could lay the groundwork for arguing that it had to intervene in order to save its own citizens from imminent harm. This justification would expand the ‘self’ inherent in the doctrine of self-defence to cover foreigners by claiming them as nationals of the intervening state.
However, even if the population in question also holds Russian citizenship, this does not mean that the use of force is permitted in relation to a foreign territory they may predominantly inhabit. The prohibition of the use of force is centred on protecting the territorial integrity and political independence of states, whatever the ethnic appurtenance or citizenship of the local population.
Still, under the doctrine of ‘rescue of nationals abroad,’ a state may be entitled to intervene on behalf of its own nationals when they are faced with imminent destruction in another state. For instance, if the local state is unwilling or unable to counter a terrorist attack against foreigners on its territory or even supports the outrage, their home state may mount a rescue operation if their very lives are in imminent danger. This was the case in the Entebbe mission mounted by Israel against Uganda in 1976.
Other cases concern situations where local order has broken down and foreigners are subject to deliberate and systematic attack by rebel movements or uncontrolled mobs. In those cases, foreign governments sometimes cooperate with one another when evacuating their allied nationals from the zone of imminent danger, even if there has been no agreement to the operation from the state concerned.
Of course, in this instance there is no suggestion that Ukraine is targeting its Russian speaking minority, whether or not they also hold Russian passports, for physical extermination. Moreover, the doctrines of forcible humanitarian action and of rescue of national abroad only cover military action strictly limited to preserving a population from imminent destruction. They do not cover invasions aiming at the actual or virtual incorporation of territory inhabited by the populations in question into the neighbouring state.
This is what happened in 2008, when Russia recognized South Ossetia as an independent state in the wake of its intervention. Its security guarantee for South Ossetia effectively made the removal of the territory from Georgia permanent. In 2017 Moscow started to integrate South Ossetia’s armed forces with the Russian military, highlighting the annexation of the territory by stealth.
This gradual, step by step approach was deemed necessary because international law prohibits the forcible acquisition of territory. This rule emerged after Japan’s forcible annexation of Manchuria in 1931 and was formalized in the so-called Stimson doctrine the following year. This rule was strengthened after the advent of the UN Charter in 1945 and has been constantly affirmed in subsequent UN standards, including the foundational Friendly Relations Declaration 2625 (XXV), adopted by the UN General Assembly on the occasion of the 25th anniversary of the UN. The resolution confirms very clearly:
The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force.
The unlawful threat or use of force amounts to a serious violation of peremptory norm of international law. Accordingly, third states are obliged to refuse recognition of forcible changes in sovereignty over territory. They must not assist the offending state and they should cooperate through the United Nations in seeking to reverse it.
When Russia took the Crimea in 2014, it found a more rapid way of trying to circumvent that rule than the slower, step by step approach taken in relation to Georgia. Under the protection of the famous ‘little green men’—Russian armed forces who had removed their insignia—Crimea first declared itself an independent state. A few days afterwards, it applied for annexation by Russia. In a formal ceremony presided over by President Putin, that request was received and granted. Most states rejected that rather obvious ploy of disguising what was an incorporation under the shadow of the use of force.
Thus far Russia is engaging in heavy-handed bullying. It is also laying the ground for potential legal justifications of the use of force should it come to that. Ultimately, however, not a single one of these possible justifications is remotely persuasive.
In calculating the international costs that a military action will incur, the Kremlin needs to bear in mind that none of the legal justifications it might invoke will provide effective cover for a military operation against Ukraine.
In this respect, international law matters. If the operation is clearly unmasked as being unlawful, Moscow will not only face a far more coherent and tough response from NATO, along with a considerable beefing up of its military posture in Eastern Europe—the very outcome President Putin claims he wants to avoid. He will also face strong and near universal condemnation from most other states around the world. Many states beyond the Western Alliance will likely re-assess their cooperative links with a state that so clearly places itself outside of the ambit of the most fundamental global rules of conduct.
http://opiniojuris.org/2022/02/08/is-russias-bullying-illegal/
