What is Russia’s Legal Justification for Using Force against Ukraine?

With missile and aerial strikes across Ukrainian territory and Russian ground forces entering Ukraine from multiple directions, there is now no doubt that the Russian Federation has used ‘force’ in the sense of Article 2(4) of the UN Charter against Ukraine, and has done so on a large scale. The burden is now on Russia to attempt to justify this use of force in legal terms. As the ICJ held in Nicaragua, para. 266, it is not for the Court – and I would add for international lawyers more generally – to ‘ascribe to States legal views which they do not themselves formulate.’ We should take into account only those justifications that Russian government officials themselves formally offer, and evaluate them objectively. 

President Putin’s speech in the early hours of this morning announcing military action against Ukraine does, in fact, attempt to do that. In its Russian original the speech is here; an English translation is available at the Spectator website here. (I have verified its accuracy to the extent I’m able to, but of course any corrections from proper Russian language speakers are welcome). The speech is a litany of President Putin’s grievances against the West and is like most speeches by politicians in this genre a mix of multiple rationales. But it does include a number of legally relevant points.

First, Putin firmly anchors his position as a response of sorts to Western states’ record of prior violations of international law, thus attempting to preempt criticism coming from these states that he is violating international law:

What I am talking about now concerns not only Russia and not only us. This applies to the entire system of international relations, and sometimes even to the US allies themselves. After the collapse of the USSR, the redivision of the world actually began, and the norms of international law that had developed by that time – and the key, basic ones were adopted at the end of the Second World War and largely consolidated its results – began to interfere with those who declared themselves the winner in the Cold War .

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You don’t have to look far for examples. First, without any sanction from the UN Security Council, they carried out a bloody military operation against Belgrade, using aircraft and missiles right in the very centre of Europe. Several weeks of continuous bombing of civilian cities, on life-supporting infrastructure. We have to remind these facts, otherwise some Western colleagues do not like to remember those events, and when we talk about it, they prefer to point not to the norms of international law, but to the circumstances that they interpret as they see fit.

Then came the turn of Iraq, Libya, Syria. The illegitimate use of military force against Libya, the perversion of all decisions of the UN Security Council on the Libyan issue led to the complete destruction of the state, to the emergence of a huge hotbed of international terrorism, to the fact that the country plunged into a humanitarian catastrophe that has not stopped for many years. civil war. The tragedy, which doomed hundreds of thousands, millions of people not only in Libya, but throughout this region, gave rise to a massive migration exodus from North Africa and the Middle East to Europe.

A similar fate was prepared for Syria. The fighting of the Western coalition on the territory of this country without the consent of the Syrian government and the sanction of the UN Security Council is nothing but aggression, intervention.

However, a special place in this series is occupied, of course, by the invasion of Iraq, also without any legal grounds. As a pretext, they chose reliable information allegedly available to the United States about the presence of weapons of mass destruction in Iraq. As proof of this, publicly, in front of the eyes of the whole world, the US Secretary of State shook some kind of test tube with white powder, assuring everyone that this is the chemical weapon being developed in Iraq. And then it turned out that all this was a hoax, a bluff: there are no chemical weapons in Iraq. Unbelievable, surprising, but the fact remains. There were lies at the highest state level and from the high rostrum of the UN. And as a result: huge casualties, destruction, an incredible surge of terrorism.

In general, one gets the impression that practically everywhere, in many regions of the world, where the West comes to establish its own order, the result is bloody, unhealed wounds, ulcers of international terrorism and extremism. All that I have said is the most egregious, but by no means the only examples of disregard for international law.

As I explained in my previous post, this type of critique DOES have some impact, for all its whataboutism and lack of moral substance. Prior violations of international law by Western allies DO make it more difficult for them to persuasively criticize Putin, and they have corroded the Charter prohibition on the use of force. But I hope that we all agree on the lack of moral substance. Even if all the examples mentioned by Putin are accepted as violations of international law by Western states, they cannot justify other violations of international law by Russia. If A murders B and gets away with it unpunished, that does not justify C murdering D. If NATO member states violated Article 2(4) of the Charter when they bombed Serbia in 1999 (which they did), this cannot possibly justify Russia bombing Ukraine in 2022. And so on – but again it is striking how prior violations of international law are rhetorically weaponized by Putin.

Putin then spends a lot of time on explaining the threat posed to Russia by NATO’s expansion, the supposed control by the West over ‘Nazis’ in Ukraine, the placement of sophisticated weapons in Ukraine, including potentially nuclear weapons. This is, to President Putin’s mind, nothing less than an existential threat to Russia, a threat that he tried to defuse peacefully, comparing himself to Stalin’s appeasement of Hitler before World War II:

For the United States and its allies, this is the so-called policy of containment of Russia, obvious geopolitical dividends. And for our country, this is ultimately a matter of life and death, a matter of our historical future as a people. And this is not an exaggeration: it is true. This is a real threat not just to our interests, but to the very existence of our state, its sovereignty. This is the very red line that has been talked about many times. They passed her.

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The entire course of events and analysis of incoming information shows that Russia’s clash with these forces is inevitable. It is only a matter of time: they are getting ready, they are waiting for the right time. Now they also claim to possess nuclear weapons. We will not allow this to be done.

As I said earlier, after the collapse of the USSR, Russia accepted new geopolitical realities. We respect and will continue to treat all the newly formed countries in the post-Soviet space with respect. We respect and will continue to respect their sovereignty, and an example of this is the assistance we provided to Kazakhstan, which faced tragic events, with a challenge to its statehood and integrity. But Russia cannot feel safe, develop, exist with a constant threat emanating from the territory of modern Ukraine.

And then he moves back to using more legal language, and gives Russia’s formal justification for using force:

You and I simply have not been left with any other opportunity to protect Russia, our people, except for the one that we will be forced to use today. Circumstances require us to take decisive and immediate action. The people’s republics of Donbass turned to Russia with a request for help.

In this regard, in accordance with Article 51 of Part 7 of the UN Charter, with the sanction of the Federation Council of Russia and in pursuance of the treaties of friendship and mutual assistance ratified by the Federal Assembly on 22 February this year with the Donetsk People’s Republic and the Luhansk People’s Republic, I decided to conduct a special military operation.

Its goal is to protect people who have been subjected to bullying and genocide by the Kiev regime for eight years. And for this we will strive for the demilitarisation and denazification of Ukraine, as well as bringing to justice those who committed numerous, bloody crimes against civilians, including citizens of the Russian Federation.

At the same time, our plans do not include the occupation of Ukrainian territories. We are not going to impose anything on anyone by force.

Finally, after several references to the right of people to self-determination, he again mentions Russia’s right to self-defence:

I repeat, our actions are self-defence against the threats posed to us and from an even greater disaster than what is happening today. No matter how difficult it may be, I ask you to understand this and call for cooperation in order to turn this tragic page as soon as possible and move forward together, not to allow anyone to interfere in our affairs, in our relations, but to build them on our own, so that it creates the necessary conditions for overcoming all problems and, despite the presence of state borders, would strengthen us from the inside as a whole. I believe in this; in this is our future.

What, then, is Russia’s formal justification for using force? As I read President Putin’s speech, he makes three possible arguments. First, that Russia is using force in self-defence, pursuant to Article 51 of the Charter, to protect itself from (some kind of) threat emanating from Ukraine. This on the facts looks like a theory of preemptive or preventive self-defence – an ‘armed attack’ is not ‘imminent’ against Russia in any conceivable way, but there is an existential threat so grave that it is is necessary to act now to prevent it (shades of George W. Bush…). Needless to say, 99.9% of international lawyers (including Russian ones, as far as I’m aware), would hold that any such theory of preemption is categorically incompatible with Article 51 (as distinguished from anticipatory self-defence in response to imminent attacks). Second, as an argument of collective self-defence of the (supposedly independent) Donetsk and Luhansk republics. The validity of that argument would of course depend on whether these two entities are in fact states (they are not, and they did not become such this week simply because President Putin signed a piece of paper), and on whether Ukraine attacked these two new supposed states. But even if this argument was taken at face value, the extent of Russia’s military intervention – and the purported goal of demilitarizing Ukraine, which likely includes regime change – appears impossible to square with the customary criteria of necessity and proportionality. Finally, there is something like a humanitarian intervention argument – that Russia is acting to stop/prevent a ‘genocide’ of Russians in Eastern Ukraine. But again the basic problem here is that, the contested facts aside, humanitarian intervention is rejected as a valid exception from the prohibition on the use of force by the vast majority of international lawyers. And President Putin’ speech does not emphasize this point anyway, nor does he use the words ‘humanitarian intervention’ or anything similar. His argument does appear to be primarily or solely one of self-defence, individual or collective, and should be evaluated as such.