The Crisis in Ukraine and the Prohibition of the Use of Force: A Legal Basis for Russia’s Intervention?

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The European continent is currently witnessing the most severe security crises since the tragic events surrounding the dissolution of the Republic of Yugoslavia. The post will discuss the legal bases for Russia’s use of force on the Crimean peninsula. 

On 1 March 2013 the President of the Russian Federation submitted an appeal to the Council of the Russian Federation for authorization to use armed force ‘[i]n connection with the extraordinary situation that has developed in Ukraine and the threat to citizens of the Russian Federation, our compatriots, the personnel of the military contingent of the Russian Federation Armed Forces deployed on the territory of Ukraine (Autonomous Republic of Crimea)’. The same day the Council granted authorization to the Russian President to deploy forces in the Ukraine. I will discuss two possibilities that could be invoked to justify Russian deployment of force despite of the general prohibition to use force under Article 2 (4) of the Charter: (i) self defence and (ii) intervention by invitation.

1. Self-defense according to Article 51 of the Charter

One of the recognized exceptions to the prohibition of the use of force is the Art. 51 of the Charter, allowing a State to use force in response to an armed attack.

The first question that has to be assessed is whether an armed attack has occurred against Russia. There has been no deployment of Ukrainian troops whatsoever on Russian territory. However, the Russian Federation seems to seek to legitimize its authorization of force on the concept of self-defense, invoking that Russian military personnel and Russian citizens on the Crimea were threatened. The legal question here is whether a state may refer to the concept of self-defense in order to protect its citizens and military personnel outside its proper territory.

The infamous UNGA Resolution 3314 on the Definition of Aggression shows that the concept of armed attack is not exclusively linked to the territory of the attacked State. Art. 1(d) of UNGA Res. 3314 reveals that a state can be object of an armed attack occurring outside its proper territory – i.e. an ‘extra-territorial armed attack’, including as an ‘act of aggression’ “[a]n attack by the armed forces of a State on land, sea or air forces, or marine and air fleets of another State”. N.B. that this provisio only speaks of the various types of forces of another State – i.e. the attacked State – that have to be concerned. As the acts mentioned in Art. 1 (a) and (b) UNGA Res. 3314 clearly require to occur ‘against the territory of another State’, Art, (1) (d) e contrario applies also extra-territorially. However, such acts must trigger the threshold of an armed attack; as Nolte and Randelzhofer rightly point out in their Commentary on Art. 51, it has to be established ‘[…] that the use of force is not insignificant’ (Nolte/Randelzhofer, in: Simma (ed.), The Charter of the United Nations A Commentary, 3rd Edition, Art. 51, MN25). The ICJ has noted in the Oil Platform case that the mining of a ship might already trigger this threshold (ICJ Oil Platforms (Iran v. United States) Judgment of 6. November 2003, para. 72).

Russia as the State invoking the right of self-defense bears the burden of proof here – as was rightly stated in the Oil Platform Case (Ibid., para. 57)- to show that Ukrainian acts against Russian military personnel are of such a gravity to constitute an ‘armed attack’. Although there have been statements of Ukrainian officials warning Russian troops in Crimea to remain in the territories where they are allowed to operate (http://en.itar-tass.com/world/721161), there are currently no reports whatsoever that the Russian fleet stationed in Crimea had been the object violent acts before the President of the Russian Federation was authorized to deploy force in the Ukraine. An armed attack against Russian military personnel in Crimea did not occur and cannot be invoked in order to justify the Russian resort to armed force.

Russia seems to be more concerned, however, about the safety of its citizens in Crimea. It is disputed among States and academics whether there exists a right to invoke the concept of an armed attack regarding the protection of nationals residing extra-territorially. Sir Humphrey Waldock in his infamous 1952 General Course at The Hague on ‘The Regulation of the Use of Force by Individual States in International Law’ (81 RdC 1952, 455) claimed that States had a right to use force to protect their citizens abroad under three conditions: ‘There must be (1) an imminent threat of injury to nationals, (2) a failure or an inability on the part of the territorial sovereign to protect them and (3) measures of protection strictly confined to the object of protecting them against injury’ (ibid.,p. 467).

Randelzhofer and Nolte deny the existence of such a right since the security of the attacked state is not threatened when its citizens are attacked outside its borders and because such a right would have the potential of ‘blurring […] any contours of the right of self-defense (see e.g. for a similar view Crawford, Brownlie’s Principles of Public International Law, 8th Edition 2012, p. 754). Dinstein, however, shares the view that nationals abroad may form the object of an armed attack in the sense of Article 51 of the Charter, ‘if the attack against [such] nationals is mounted primarily because of their link of nationality [to the attacked state]’ (Dinstein, War Aggression and Self-Defence, 5th Edition 2011 at 218) and refers to an impressive amount of State practice supporting his view (Ibid at 257 et seq.) ranging from the Israeli liberation of hostages in Uganda in 1976 to the American Invasion in Panama 1989 and the Russian invasion in Georgia in 2008. Only the last case will be discussed here, as it seems most relevant for the current situation. Gray argues that in the events surrounding the Russian intervention in Georgia to protect its nationals ‘[…] western States did not oppose this doctrine as a matter of principleֹ’ but ‘ challenged Russia’s motives and the proportionality of the Action’ (Christine Gray, “The Use of Force and the International Legal Order”, in: Malcom D. Evans (ed.), International Law, Third Edition, 2010, 615 at 627).

A blog post is certainly not the right place to resolve this complicated issue. However, even when arguendo that such a right would exist de lege lata, it would seem very difficult to justify Russia’s current action. Although there are divergent views between Western and Russian media on what is currently happening to Russian nationals in Crimea there seem to be no reports that would clearly establish that Russian nationals in Crimea or other parts of the Ukraine have been threatened. The Russian federation only generally asserts ‘a real threat to the lives and health of Russian citizens’ but fails to establish in concreto how Russian citizens are endangered by the governmental transition that has occurred in the Ukraine on 23. February 2014. Therefore, in my opinion, the Russian authorization of force cannot be justified by the concept of self-defense under Article 51 of the Charter.

Even when one does not concur with this conclusion, Russian actions would have to comply with the requirements of necessity and proportionality in order to be lawful under Article 51 of the Charter. One fails to understand, how actions like the surrounding of Ukrainian military bases in Crimea, should contribute protecting Russian nationals, given that there are no claims that they have been threatened by Ukrainian forces .

2. Intervention upon Invitation

Another, albeit, unwritten exception to the general prohibition of the Use of Force is the case of an ‘intervention upon invitation’. Russia does now seem to base its actions on the consent of Ukrainian authorities rather than on the protection of Russian nationals. Mr. Yanukovich who is currently in Russia still considers himself as the ‘lawful head of state of the Ukraine’ and could be involved to legitimize Russian action. Furthermore, the new Prime Minister of the autonomous region of Crimea has issued a statement requesting Russian assistance in order to restore peace and calm (translated by google). I will therefore discuss whether a. Mr. Yanukovich or b. the Prime Minister of Crimea could validly invite Russia to intervene in the Ukraine and thereby justify Russian use of force. Assessing the legality of an intervention upon invitation is complicated, as the State practice surrounding the issue is partly unclear. However, despite all this uncertainty Conclusion 5 of UNGA Committee on the Problem of Hungary should be borne in mind:

“ The act of calling in the forces of a foreign State for the repression of internal disturbances is an act of so serious a character as to justify the expectation that no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government.” (GAOR: ELEVENTH SESSION SUPPLEMENT No. 18 (A/3592 at p. 79).

The ICJ has in the Nicaragua case also pointed out the importance of governmental consent to intervention by noting:

“As the Court has stated, the principle of non-intervention derives from customary international law. It would certainly lose its effectiveness as a principle of law if intervention were to be justified by a mere request for assistance made by an opposition group in another State – supposing such a request to have actually been made by an opposition to the régime in Nicaragua in this instance.” (ICJ Nicaragua, op.cit. , para. 246)

The question at hand is whether Mr. Yanukovich still represents the Ukrainian government, given that the Ukrainian parliament adopted a resolution on 22. February 2014 requesting Mr. Yanukovich to resign and elected Mr. Turchinov as his successor the next day. I do not want to take a stance whether it was legal under Ukrainian constitutional law or the interim agreement of 21. February 2014 () that the former opposition had previously concluded with Mr. Yanukovich, while he was still in power.

I think one might simply deny the validity of Mr. Yanukovich’s consent for the lack of effective control of the situation in the Ukraine. Effective authority would seem to be of primordial importance in determining who is entitled to validly speak out an invitation (cf. in that regard Malcom M. Shaw, International Law 6th Edition, 2008, p. 1151). This line of argumentation even holds true if one considers, and this is not my personal interpretation of the events, that Mr. Yanukovich has been overthrown by an illegal Coup d’État. In times of turmoil and upheaval with competing claims for legitimacy, effective control would seem the sole factor that can be determined and verified objectively. Predictability is crucial for the legality of an intervention upon invitation as ‘ no uncertainty should be allowed to exist regarding the actual presentation of such a request by a duly constituted Government’ (GAOR, op. cit.). Support to an overthrown legitimate government could solely be given multilaterally by the UNSC acting under Chapter VII of the Charter (Olivier Corten, The Law against War, 2010, pp. 284 et seq.).

The case is even clearer for the Prime Minister of Crimea. It is not disputed by all actors – including the Russian Federation – that the Crimea is part of the Ukraine (cf. in that regard statement by the UNSC President of 28 February whereby ‘[s]upport was expressed for the unity, territorial integrity and sovereignty of Ukraine’. The author of an invitation to intervene must be the highest state organ available (Nolte, Intervention by invitation, in: R. Wolfrum, MPEPIL, at para. 23). One cannot see how the head of a federal entity of a State could issue such a declaration. A valid invitation would have to emanate from the central government. Thus Russia cannot claim that use of force in Crimea can be justified by the invitation of the local government.

Therefore, the Russian use of force in Crimea is illegal under international law. One might add that the concept of a Humanitarian Intervention, whose recognition by positive International Law remains doubtful, would not change this result. Russia has so far not invoked this concept. As this State has opposed the validity of humanitarian interventions on numerous occasions, it seems doubtful that it will do so in the future. However, even if one accepts the validity of this doctrine under international law, a humanitarian intervention would not be applicable here. It is only in situations where a civil population is subjected to crimes against humanity or genocide that a third state might be entitled to act on the behalf of the civilian population. There is no evidence that such perilous acts have been carried out against the Russian speaking population in Crimea or elsewhere on the Ukrainian territory. It rather seems the case that by supporting the Russian speaking population in Crimea, Russia is supporting the ethnification of a political dispute in the Ukraine

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    Linas says

    March 4, 2014

    In addition, apparently, such a consent to deploy foreign troops in the territory would, in accordance with the Ukrainian Constitution, require the approval of the Ukrainian Verkhovna Rada. Such an approval did not exist in the present case. If I am not mistaken, the ILC, in its commentaries on state responsibility, has specified that the state's consent needs to be in conformity with the internal procedures of the inviting state, which appears not to be the case right now.

    Oliver Daum says

    March 4, 2014

    Hi Daniel,

    this is a well-founded post with good thoughts. I wonder about your underlying premise Russia violating Art. 2(4) UNC by the deployment of troops. Please, don't get me wrong, however, the circulating information in the media concerning Russia's violating of international law are not yet reliable.

    Isn't there any treaty concluded between Russia and the Ukraine according to which Russia is entitled to post soldiers on the Crimea peninsula? How exactly does Russia violate Art. 2(4) UNC or any other rule of international law?

    Best regards

    Jordan says

    March 4, 2014

    The invasion with some additional 16,000 Russian troops is beyond any agreement for a naval base and involves a use of armed force against the territorial integrity and political independence of the Ukraine. It is also a use of armed force inconsistent with the major purposes of the United Nations. Why? There has been no consent from the new government of the Ukraine -- just the opposite! Russia's claim is specious since there has been no use of force by the new government of the Ukraine against any Russian nationals (which admittedly would trigger the right of self-defense) and under Article 51 of the Charter the inherent right of self-defense is limited to a circumstance where "an armed attack occurs." An imminent threat is not even a present threat, and a present threat is not sufficient for measures of self-defense in response to and armed attack that "occurs." See http://ssrn.com/abstract=2402414
    Anticipatory self-defense is not even on the table and would be highly suspect in any event in view of the precise language in Article 51. See, e.g., id.
    Invitation from a publicly impeached former president simply won't hold water.
    However, isn't it interesting that part of the Russian claim, today, is based on "humanitarian intervention," with R2P lingering in the background. Has Russia accepted the validity of humanitarian intervention when a government actually violates its R2P? In Syria? Or, given the actual facts in this case, is Russia attentive at all to international law? Former Ambassador Albright declared that Putin lives in another world, that the conduct is nothing more than illegal aggression.

    Ashish Kumar says

    March 4, 2014

    I am just wondering about the hypothetical scenario wherein Russians say that they have the responsibility to see that no physical harm is done to those Russian military (and their) bases, directly or indirectly from internal conflict inside Ukrainian territory. Suppose USA has military bases in a number of countries around the world and in one country opposition party comes to power and threatens the US military bases with dire consequences or perhaps an actual attack happens against such US bases, then in such a volatile situation, can US actually deploy additional forces in such country , citing the reason that lives of her people operating in the military bases are to be protected at any cost or citing the reason that troops deployment is necessary in order to quell the threat of imminent attack to its military bases? Please throw some enlightenment on such line of possible justifications.
    Ashish Kumar
    Assistant Professor in Law
    Faculty of Law
    University of Delhi

    Oliver Daum says

    March 4, 2014

    @Jordan

    I also tend to conclude that Russia acts in contravention of Art. 2(4) UNC. However, let’s say for academic purposes, I want to get to the ground of it.

    First, the mentioned treaty between the Ukraine and Russia, which enables Russia to position troops on the Crimea peninsula, is effective regardless of the actual consent of the Ukrainian government now in power. I tried to find the relevant treaty, the 2010 Kharkiv Accords, but unfortunately I did not come across a version I could read. All I know is that Yanukovych and Medvedev, back in 2010, extended the lease of the Sevastopol naval base up to 2045, deliberately postponing negotiations concerning the total amount of deployed soldiers and their movement on the peninsula. Thus, the fact that 16.000 Russian troops are on the Crimea does not suffice itself to amount to an infringement of Art. 2(4) UNC.

    Second, in 2009 there were still more than 18.000 soldiers from the UK and more than 56.000 soldiers from the US on German soil.

    Heiko Recktenwald says

    March 4, 2014

    Deal all, according to the LA Times there is a treaty from 1997 that allows 25.000 troops. It may be unreasonable but this seems to be what the treaty says.

    Heiko Recktenwald says

    March 4, 2014

    If that naval treaty is more than a reasonable naval treaty, they can -- maybe -- talk what they want.

    Jordan says

    March 4, 2014

    Ashish: as noted in the article on SSRN (click on for a free download, e.g., as anonymous), an armed attack would have to have begun or be underway in view of Article 51. A mere threat would not be enough for a measure of self-defense. I assume that by "threat of imminent attack" you mean to raise the questions whether anticipatory self-defense is permissible even though an armed attack is not initiated or underway. I view that as a minority viewpoint (please see the article).
    Oliver: Heiko may have "confused us with the facts" (that is, if the treaty does permit up to 25,000 troops)-- but what are those troops actually doing? Are the off of the naval base, is that permitted, are they engaged in a threat of force in violation of Article 2(4)???
    Given that Putin has spoken of "humanitarian intervention" and "self-defense" of nationals, it may be that in context those Russian troops are intervening beyond the terms of the treaty.
    Heiko: good catch re: the possible treaty language, but re: Germany there has been consent of the legitimate government of Germany re: the actual numbers of UK and US troops.

    Lidiia Kuzmenko says

    March 4, 2014

    Dear colleagues,
    It is interesting to read the discussion above.
    I would like to clarify some issues already mentioned by the distinguished colleagues.
    First, the issue of the number of troops to be deployed on the Crimean peninsula: according to the prolonged in 2010 agreement on the deployment and status of the Black Sea Fleet of the Russian Federation any changes in the number of marines and other Russian military personnel present in Crimea should be reported to the Ukrainian government. The last such reporting was done in December 2013 and the agreed number was 11 000. However, currently there are at least 16 000. The second issue concerns locations of the military personnel of the Black Sea Fleet of the Russian Federation. There are certain bases where such personnel can be located. However, as of 26 February 2014 fully armed Russian military personnel have been trying to block Urkainian military bases and units of border guard service. That's not a protection of "own forces" but rather agressive behaviour.

    Jordan says

    March 4, 2014

    Obviously the situation is "fast moving." CNN reports Tues. afternoon EST that Russian troops have surrounded 10 Ukrainian military bases, have controlled areas where the Russian and Crimean flags are flying and not that of the Ukraine, were "digging in" at a Ukrainian military base, have kept 100 unarmed Ukrainian military soldiers from returning to Belbek Air base (a Ukrainian military bases) and fired warning shots --- sounds like military action way beyond what would be contemplated by a naval base agreement with Russia and sounds like a use of force.

    David Hernández says

    March 5, 2014

    Dear all,
    For the sake of accuracy, the lease was extended in 2010 until 2042, not 2045.
    Diplomats understandably refrain from using the A-word when negotiations are under way, but I am not one: this is a prototypical violation of PIL. As far as this episode is concerned, the applicable law and the facts warrant no other conclusion that AGGRESSION, which is the gravest crime in PIL as we still know it today.

    Rizzo says

    March 5, 2014

    I'd like to come back to the concers about the factual basis for the arguments made in the article and most comments: that the troops on the peninsula are actually representatives of the russian army. So far, Russia maintains that these are not their own, but rather pro-russian militia which are not under russian control.

    While that seems unlikely at best - given the equipment of these "troops" and various reports about russian licence plates etc. - a violation of Art. 2 (4) UN-Charter directly by Russia by way of using force may have to be assessed under different premises.

    Assuming that, indeed, these troops are not russian military, I think the only way a violation of Ukraine's territorial integrity might be attributed to Russia, is if Russia does - in contrast to what russian officials claim - control these troops.

    In that regard, Art. 3 (g) of the Definition of Aggression and some arguments made by the ICJ in the Nicaragua-Case (e.g. para. 115) on the issue of attributing paramilitary activities to a state might be helpful.

    Aside all of that, from the facts I see as "undisputed", one can probably argue a violation of Art. 2(4) UN-Charter by Russia by threatening to use force should certain conditions arise in Ukraine (i.e., the Parliament's "authorization").

    Lidiia Kuzmenko says

    March 5, 2014

    Rizzo: @Assuming that, indeed, these troops are not russian military, I think the only way a violation of Ukraine’s territorial integrity might be attributed to Russia, is if Russia does – in contrast to what russian officials claim – control these troops.@
    There are videos on which "unrecognized" military personnel actually inform that they are Russians and that they "await orders from Moscow".
    That's with regard to factual circumstances.

    Ralph says

    March 5, 2014

    @Linas
    you are right, the commentaries on the ILC articles indeed do refer to the domestic system of the state in question. Equally, however, they also mention the VCLT provisions on full powers when it comes to the presumption of authority to issue such an invitation. Thus, an argument can be made that the internal order does not necessarily have the final say on that matter.

    Jordan says

    March 5, 2014

    Rizzo & Lidiia: please see my article on self-defense at SSRN (first post, click on), since it demonstrates that "effective control" is not the test for attribution or imputation of non-state actor armed attacks to a state and that the test has a lower threshold. The test is "substantial involvement." See 45 Georgetown J. Int'l L. 411, 425-435 (2014). Too many textwriters have used the wrong test. See id. at 433-434 n.52.

    Daniel Wisehart says

    March 6, 2014

    Dear ejiltalk readers,
    thank you very much for your remarks. I would like to respond to them by adding three points.
    First of all, the point of reference of my legal analysis was the Russian authorization to use force and possible justifications for such an authorization. A State has to make sure that such an authorization abides to international law and is conform to the general prohibition to use force under Charter. I have tried to base my legal assessment on undisputed fact as far as possible. The only point where I claim that Russia is actually deploying troops in Crimean peninsula is the last paragraph of the post. Reliable news reports on Sunday seemed to suggest that the troops surrounding Ukrainian bases were of Russian origin. It was only on Tuesday, when the post went live, that the Russian government started insisting that the troops deployed on the Russian peninsula were not of Russian origin. I do not want to resolve this issue, as I am not a fact finding commission. However, I still consider my legal analysis to be valid, even when one is guided by the premise that Russia so far has not used force in Crimea
    Second, any treaty between the Russian Federation and Ukraine certainly will not modify my legal analysis. The prohibition of the use and threat to use force certainly primes any differing treaty obligations according to Article 103 of the Charter. Furthermore, 1997 Treaty on Friendship, Corporation and Partnership between Ukraine and the Russian Federation (I have only found a version available for readers that have access to jstor) obliges state parties to peacefully resolve eventual disputes (art. 3). I have so far not found the Agreement between Russia and Ukraine on the Status and Conditions of the Presence of the Russian Black Sea Fleet on the Territory of Ukraine signed on the 8th of August 1997 (any hints are highly welcome). The fact that Russia has the right to station troops there, does certainly not mean that Russia would be entitled to authorize the use of force on Ukrainian territory. The UNGA Definition on Aggression (Res 3314 XXIX) gives a useful hint on this issue as the Definition comprises:
    “(e) The use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement”.
    It would be of real interest to see the 1997 Agreement, however.
    Third, I think that, as Zachary Vermeer was right to note this morning on ejiltalk that the intervention upon invitation argumentation is the strongest available to the Russian federation. However, as I have said, the interviation by Yanukovich is irrelevant. In my view, effective control is the only criteria in these types of situations that counts because it can be established objectively. The UNSC can intervene on behalf of a legitimate government but unilateral intervention does not seem appropriate in such scenarios. Olivier Corten in The Law against War, 2010, at pp. 284 et seq. quite convincingly lays this down and also quotes state practice in the aftermath of the Coup d’État in Haiti in 1991. where none of the actors argued in favor of an unilateral intervention despite of the universally recognized legitimacy of the former government and its urging appeal to intervene, it took UNSC Chapter VII Resolutions to do so. The Situation in Sierra Leone in 1998 might not be the precedent of our type of constellation. The ECOMOG was already in Sierra Leone when the Coup d d’Ètat occurred and their use of force might be rather based on self-defense. Furthermore, their presence had been accepted by the effective government (cf. also Corten, ibid., p. 286 for this argument with further references).

    Zero says

    March 17, 2014

    If i may have a say in the matter allow me to. I may not be an expert ( I have to admit that international law is kind of terra nulia for me ) but the recent events in the Crimea reveal to me a few things.
    1) The rapid deployment of the russian troops shows that there was a plan to infiltrate ( i would not use the word invade ) Ukraine and the Crimean.
    2) I noticed that this tiny little detail I am about to say is not mentioned anywhere. I must tell you lads that President Putin has mister Snowden ( sorry for spelling it wrong you know the former CIA operative ) under protection in Moscow. This fact in addition to an article i recently happend to lay eyes on ( I mean the article in the Guardian about the discussion between the Esthonian foreign minister and miss Astor in which the first one stated that the snipers deployed in Kiev that killed many protestors were one and the same with the ones tha killed policemen durin the riots and all evidence point that they were not under the command of former president Janukovitz or Russians ) make me wonder about a thing. I know it will sound like conspiracy or even worse a far fetched scenario but what if the EU or the USA in order to get their hands on Ukraine dispatched agents ( these sharpshooters ) in order to wreck havoc thus forcing the goverment under Janukovitz ( again sorry for any mistakes ) which by the way proved to be very friendly to Russia to resign thus ending any friendly moves toards Russia. In the same time a new goverment would come in power that would terminate all diplomatic relations with Moscow and in the same time make an opening to the West ( if my intel is correct IMF is on it's way to Kiev ). Now imagine being Putin. A former (?) KGB operative who has a little bird in golden cage ( Snowden ) and you have invested a lot of money in Ukraine and one day you wake up and find out that something like that is about to happen. How do we react? An declaration of war is not the right way. Sitting back and enjoy the show won't do the trick. So you go full steam ahead with a covered armed intervention in order to secure a foothold in the area.
    Finally I personaly believe that no matter the cost Russia will not back down. It will stay there regardless of international laws and keep her prize. To be honest how can the Yanks speak of international law when they bombed Yugoslavia, invaded Iraq, Afganistan and staged insurections in Libya and Syria? Thanks for your time.