War in Ukraine and Law of War

During the post-World War II era, states in general, abstained from resorting to the use of violent force in resolving their bilateral disputes. The relative decline of inter-state wars in past seventy-odd years stands out as one marker of adherence of states to this legal norm. The Russian invasion of Ukraine, however, becomes another random episode of a great power hubris when it comes to abiding by the norm of prohibition of the use of force.2 Whereof the Russian President while laying down the justifications for the Ukrainian invasion rightly pointed out numerous other occasions of unlawful use of force by the United States and its Western allies.3 Yet besides highlighting the past justifications of his opponents, he himself, could not put forward a reasonably convincing case for invading its neighbour. Various historical references of the unity of now two independent states, violations of human rights by the Ukrainians in the rebel-held areas, and the protection (collective self-defence)4 of the self-proclaimed independent States, do not give Russia any right to self-defence: the only exception available to an individual State under Article 51 of the United Nations Charter. Rather too much emphasis on the past wrongs committed by other states, in this context, seems to be the only hedge against committing another violation of the law of war.

A State can avail the right of self-defence ‘if an armed attack occurs’ (quoting the UN Charter) is indeed qualified permission inside the law of war. To invoke this right, a state can in no circumstance ignore the qualifying part of it. Otherwise, the history of the law of war being witness to the progression of laws might attest to the fact that self-defence is nothing but a consistent attempt at self-preservation of states at the cost of norms, values, and principles of civilized conduct.5 In fact the transition from self-preservation to self-defence guaranteed the stability of the world security order as well as the coherence of the international legal order. Thus, the invocation of the right of self-defence on the part of the Russian Federation by ignoring to fulfil the qualification is not only unlawful but an active exercise in regression concerning the trajectory of the law of war.

Beyond self-defence, Russia also claims to have intervened militarily at the request and invitation of the so-called Peoples’ Republics of Donetsk and Luhansk. An effective part of the sovereign Ukrainian territories, these Republics cannot overnight become independent states. At best they are opposition groups inside the sovereign state of Ukraine and cannot invite foreign powers to their military aid. As explained by Hersch Lauterpacht any “[r]ecognition is unlawful if granted durante bello, when the outcome of the struggle is altogether uncertain. Such recognition is a denial of the sovereignty of the parent State.”6 A Premature recognition, Lauterpacht maintains, shall amount to an illegal intervention on the part of the intervening State.7 An abuse of the principle of recognition, in fact, will not serve the purpose of stable world order.

Besides the invocation of the few legal principles devoid of any sound legal justifications, most of the Russian justifications for invading Ukraine fall within the sphere of political rhetoric for engaging in a war. Fear of NATO expansion, the Ukrainian choices of culturally, ideologically, politically, and economically aligning with the West, human rights violations in the Donbas regions, violations of past peace treaties, etcetera will not help Russia in basing its case for the invasion of an independent state on any solid legal basis. Already, Russia has noticed that these justifications are failing to convince most of the states concerned with the legality and legitimacy of its military invasion of Ukraine.8 Thus in this context, if the past is any guide, one statement of history stands out above other, and that is, that unlawful wars never help in achieving the military objectives of first movers (aggressors). In recent times, the US invasion of Iraq in 2003 is an important example.

About the Author

Imdad Ullah

The author is an Assistant Professor at the Centre for International Peace and Stability (CIPS), National University of Sciences and Technology (NUST), Islamabad.