The Russian Invasion of Ukraine: Examining the Legality of US Interference
The Russian invasion of Ukraine initiated this past February was the culmination of significant regional tension that had been brewing for several years. Ukraine regained independence when the Soviet Union fell in 1991. A decade later, the North Atlantic Treaty Organization (NATO) began expanding further into Eastern Europe; in 2004, former Soviet states Latvia, Lithuania and Estonia became members of the organization. NATO also adopted an “Open Door Policy,” meaning that any European State that wishes to embody the principles of NATO and its treaty can apply to join the organization. These developments implied that Ukraine, as a post-Soviet European state, could also one day join NATO—such a possibility was first put on paper at the 2008 Bucharest Summit. At this summit, the allies reaffirmed Ukraine’s right to determine its own security dispositions, a right that Russia had also accepted through treaties such as the NATO-Russia Founding Act in 1997. [1] The recent Russian invasion of Ukraine thus raises the question of whether the United States is legally allowed to interfere in the event that Russia takes over Ukraine; this question arises due to the conflict behind US military intervention. [2] Due to the violation of the law of aggression during armed conflict between Russia and Ukraine and the principle of collective self-defense, the United States is legally able to intervene in the conflict of the Russian occupation of Ukraine.
Even though Russia has technically acknowledged the sovereignty of Ukraine, they have not respected it in practice, particularly given Ukraine’s clear pro-Western political trajectory. [3] President Vladimir Putin has expressed his concern over Ukraine’s proximity to Western powers on numerous occasions and claimed that a Ukrainian-Western alliance would be hostile to Russia. [4] Furthermore, Putin does not see Ukraine as a sovereign nation but as a Russian entity, which brings up the international legal concern regarding the independence of states. Moreover, by annexing the formerly Ukrainian peninsula of Crimea in 2014, the current Russian government has historically acted on this belief, demonstrating their commitment to reclaiming Russian territories of prior decades. [5] However, despite their close ancestral ties to both the Russian Empire and the Soviet Union, a majority of the Ukrainian people favor a closer alliance with the West and NATO. [6] In fact, according to a 2017 public opinion survey by Rating Group Ukraine, 57 percent of Ukrainians have a “very cold or cold attitude” towards Russia, demonstrating a growing anti-Russian sentiment in the country. [7]
Although Russia is a permanent member of the UN Security Council, the country’s invasion of Ukraine constitutes a violation of humanitarian law, especially as it relates to acts of aggression and war crimes. According to Article 8 of the Rome Statute of the International Criminal Court (ICC), an act of aggression is defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State.” [8] Though neither Russia nor Ukraine are a state party to the Rome Statute, its jurisdiction still applies to both nations due to Article 12 of the Statute. According to Article 12, a non-member state can accept the court’s rulings over a specific topic, which Ukraine has already done twice. [9] Thus, Russia’s violation of this statute could cause them to face legal repercussions at the ICC. [10] Furthermore, Russia can be considered to violate the Law of Armed Conflict, also known as International Humanitarian Law. The Law of Armed Conflict states that during times of war, militaries must guarantee that humanitarian values–such as the safety of civilians–are being upheld. [11] Given the threat to the civilian population of Ukraine, the United States is justified in considering “collective self-defense,” a term within the UN charter that relates to a state defending another state from military force. [12] This principle can be legally applied if one state takes aggressive military action against another state that violates international law.
Because of certain principles within collective self-defense, the United States could legally defend Ukraine and counteract Russian aggression. The law of collective self-defense under the UN charter is defined as the right to defend other states, whereas collective self-defense in the “Standing Rules of Engagement” used by the U.S. military defines the term as “the act of defending designated non-U.S. citizens, forces, property, and interests from a hostile act or demonstrated hostile intent.” [13] The “citizens” defined here can include citizens of an allied country of the United States. However, because this definition is vague, it is important for the United States to follow the rules of jus ad bellum–defined in Article 51 of the UN Charter as a state using force against another state with the consent of the state being invaded–when specifying the amount of force they will use against Russian opposition. As such, the second legal question regarding an invasion is the extent to which a state can use force when defending another state. According to the Law of Armed Conflict, the conflict among groups must reach the level of a “non-international armed conflict” in order to have an intervention, defined as a conflict where governments and several armed entities engage militarily, threatening the sovereignty of a state. [14] Russia has committed the crime of aggression, expressing hostile intent to hurt Ukrainian sovereignty. Thus, if the US were to intervene in the conflict with support from Ukraine, they would have to follow the rules of jus ad bellum.
Furthermore, following the legal doctrine of collective self defense, the United States could use considerable military force to prevent Russia from committing war crimes. A similar case of invoking collective self defense can be seen in the Nuremberg Trials, which tried German atrocities, from 1945 to 1946. An international treaty signed on August 8th, 1945 by the United Kingdom, the United States, France, and the Union of Soviet Socialist Republics (USSR) contained articles that details specific violations of international law that Germany had violated. In Article 6, for example, the Allies argued that “the following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal which there shall be individual responsibility,” referring to punishing Germany for war crimes, crimes against humanity, and crimes against peace under a court of international law [15] This demonstrates that in the case of extreme violations of international human rights, such as illegal armed conflict, foreign intervention is allowed—a criteria met by the Russian invasion of Ukraine. Furthermore, in this instance, intervention by the United States would not be unilateral, as the Russian invasion of Ukraine concerns a coalition of countries that wish to uphold the United Nations’s principles regarding armed conflict, such as NATO.
Russia’s invasion of sovereign entities is similar to other international military conflicts, such as the 2008 conflict between Russia and the Republic of Georgia. Similar to Ukraine, Georgia left the Soviet Union, declared independence in 1991, and pursued a new political path forward to build stronger ties with Western nations—which eventuated in the Russian invasion of Georgia. Russia’s 2008 war against Georgia brought up similar legal consequences as the Russia-Ukraine war, including violations of International Human Rights Law and the Law of Armed Conflict. [16] When the European Court of Human Rights heard the judgment of war in Georgia v. Russia (2021), it ruled that the Russian Federation was guilty of a number of charges, including ethnic cleansing, civilian attacks and illegal occupation. These crimes include destruction of public facilities, such as schools, that would harm Georgian civilians. However, Russia ignored most of these rulings, including the requirement of 10 million Euros to compensate Georgia for war damage. [17]
The legal grounds for U.S. intervention further draws upon international humanitarian law. The Russian invasion of Ukraine is an international armed conflict, violating the legal terms within the 1977 Additional Protocol I, the Hague Convention of 1908, and the Geneva Conventions. [18] Because Russia and Ukraine attended Protocol I and the 1949 Geneva Conventions, they are subject to international humanitarian law. Furthermore, Russia and Ukraine have signed numerous human rights treaties, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the European Convention on Human Rights (ECHR), illustrating that they have agreed to adhere to laws guaranteeing basic human rights. International human rights law and the laws of war strictly prohibit military attacks from targeting civilians. [19] However, the Russian invasion of Ukraine has made civilians the direct targets of military combat; for example, Russian missiles have targeted the Freedom Square in Kharkiv, Ukraine’s second largest city. [20] Additionally, a fundamental tenet of the law of armed conflict is that civilians must be separate from military conflict, yet many Ukrainian civilians have had to forcibly leave their homes to protect themselves from war and find suitable refuge.
A further case that relates to the Russia-Ukraine war is Namibia v. South Africa (1971), which dictates the implications of an international court of law determining the actions of countries in the UN. In October of 1966, the UN General Assembly ruled that South Africa was illegally occupying the territory of Namibia, and that, as a result, other countries should not establish deals with the South African government. Namibia used to be an area under South Africa as it was captured during World War 1, though it officially became independent in 1990. Despite this, South Africa has continued to treat Namibia as a province of the country. [21] South Africa’s occupation was thus in direct conflict with the UN Security Council Mandate: Namibia was its own separate country. This court case bears similarities with the conflict between Russia and Ukraine, as it shows that when one country’s invasion of another is against UN doctrine, international law acts as an “order” that dictates specific action for other countries so that they may counteract a state’s illegal behavior. If the US military were to assist Ukraine, they could legally justify use of force against Russia by referencing Russian violations of several UN doctrines.
The events unfolding in Ukraine raises questions regarding how the world will respond: will international pressure, from the United States or other nations, be enough to stop the invasion? With Russia’s history of ignoring international rulings, it seems that the international community must do more than just rely on economic sanctions or the invocation of international humanitarian law to condemn the state’s actions. In particular, the Russian violations of international law in its invasion of Ukraine could allow for a direct U.S. military response to the conflict. Even still, international humanitarian law must continue to determine what an effective US response will look like, particularly considering the impacts of Russian actions on Ukrainian civilians and sovereignty.
Edited by Lika Gegenava
Sources:
[1] NATO-Russia: Setting the record straight, North Atlantic Treaty Organization (2022), online at https://www.nato.int/cps/en/natohq/115204.htm (visited March 20, 2022).
[2] Definition of the crime of aggression, The Principality of Liechtenstein and the Global Institute for the Prevention of Aggression, online at https://crimeofaggression.info/role-of-the-icc/definition-of-the-crime-of-aggression/ (visited March 20, 2022).
[3] International armed conflict in Ukraine, Rulac Geneva Academy (2022), online at https://www.rulac.org/browse/conflicts/international-armed-conflict-in-ukraine#collapse1accord (visited March 20, 2022).
[4] Id.
[5] Steven Pifer, “How Ukraine views Russia and the West”, Brookings Institute (2017), https://www.brookings.edu/blog/order-from-chaos/2017/10/18/how-ukraine-views-russia-and-the-west/.
[6] Eliza Mackintosh and Rob Picheta, “What does Putin want in Ukraine? The conflict explained,” CNN (2022), https://www.cnn.com/2022/02/24/europe/ukraine-russia-conflict-explainer-2-cmd-intl/index.html .
[7] Id.
[8] “Definition of the.”
[9] Zoha Siddiqui et al., “Could Putin Actually Face Accountability at the ICC?,” Foreign Policy (2022), https://foreignpolicy.com/2022/03/04/icc-investigation-russia-ukraine-putin-war-crimes/ .
[10] Id.
[11] Law of Armed Conflict, Canadian Association for Refugee and Forced Migration Studies Online Research and Teaching Tools (2022), online at http://rfmsot.apps01.yorku.ca/glossary-of-terms/law-of-armed-conflict/ (visited March 20, 2022).
[12] Elvina Pothelet, U.S. Military’s “Collective Self-Defense” of Non-State Partner Forces: What Does International Law Say?, Just Security (2018), online at https://www.justsecurity.org/61232/collective-self-defense-partner-forces-international-law-say/#:~:text=For%20international%20lawyers%20the%20phrase,the%20territory%20of%20another%20State (visited March 20, 2022).
[13] Id.
[14] Id.
[15] Nuremberg Military Tribunals Indictments Cases 1-12, (Nuremberg: Office of Military Government for Germany (US), 1948), page #.
[16] Natia Seskuria, “Georgia Wins a Legal War Against Russia,” RUSI (2022), https://rusi.org/explore-our-research/publications/commentary/georgia-wins-legal-war-against-russia.
[17] Sarah Pruitt, How a Five-Day War With Georgia Allowed Russia to Reassert Its Military Might, History (2018), online at https://www.history.com/news/russia-georgia-war-military-nato (visited March 20, 2022).
[18] “Russia, Ukraine & International Law: On Occupation, Armed Conflict and Human Rights,” Human Rights Watch (2022), https://www.hrw.org/news/2022/02/23/russia-ukraine-international-law-occupation-armed-conflict-and-human-rights#.
[19] Id.
[20] “Ukraine conflict: Russia bombs Kharkiv's Freedom Square and opera house,” BBC News (2022), https://www.bbc.com/news/world-europe-60567162 .
[21] Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (South Africa. v. Namibia), 1971 I.C.J. 16 (1970) (Advisory Opinion).