Ukraine Insta-Symposium: Ukraine Under International Law

[Mary Ellen O’Connell is the Robert and Marion Short Professor of International Law and Research Professor of International Dispute Resolution at Notre Dame School of Law.]

Russian troop movements in Crimea have catapulted international law to the center of a tense political-military drama.  U.S. Secretary of State John Kerry has charged the Russians with an act of aggression.  Russian President Vladimir Putin has parried with arguments in justification and counter-claims involving unlawful Western uses of force.

The very form of these exchanges raises some hope the crisis will be resolved peacefully and the prohibition on the use of force will emerge re-invigorated. Secretary Kerry’s charge of aggression is accurate only under a classic interpretation of the international law on the use of force—one that the U.S. has moved away from steadily since 1999.  Making the charge indicates a new awareness in the U.S. executive branch of the importance of the international law on the use of force.  In the case of the Ukraine, its rights under international law are its most powerful tool vis-à-vis Russia.  The use of military force is not an option; counter-measures need to be aimed at the enforcement of clear legal principles to be permissible and effective.

Events in Ukraine are still unfolding, but some of the established facts help with the legal analysis.  Russia and Ukraine have a 1997 treaty, extended in 2010, that, among other aspects, permits the Russian Navy to have facilities in Crimea until 2042.  The treaty also permits Russia to station up to 25,000 troops in Crimea; Russia has 16,000 there now.  It appears that on March 1, Russia moved 6000 troops beyond its naval facilities in the midst of the turmoil in Ukraine’s capital, Kiev.  Credible reports indicate that many in Crimea support these troops, including armed, uniform-wearing persons.  Russian troops have not so far used lethal force and Ukrainian forces loyal to Kiev remain at their bases.  The interim government in Kiev has demanded that all Russian troops withdraw.

Secretary Kerry is correct that this set of facts could constitute aggression.  Aggression is any serious violation of Article 2(4) of the United Nations Charter.  Article 2(4) generally prohibits the resort to military force. The Charter contains only two narrow exceptions to this prohibition: self-defense if an armed attack occurs (Article 51) and with Security Council authorization (Article 39-42). Some specialists in this area also believe there is a right to intervene upon the invitation of a government.

The 1974 United Nations General Assembly Resolution 3314 supplies additional detail to this basic definition. Under Article 2 of the Resolution, any first use of force in violation of the Charter is prima facie evidence of an act of aggression.  Article 3 lists specific examples of aggression, including the relevant example for the case of the Crimea:

(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;

Russia does appear to be in violation of the 1997 treaty and, therefore, in breach of Article 2(4).  This conclusion requires that the interim government in Kiev has authority to reject Russian troops moving beyond their bases, and rejecting the view that the interim government in Kiev is unconstitutional and has no right to demand Russian troops return to their bases.  This position reverses assertions the U.S. had the right to act on an invitation of the Kosovo Liberation Army in attacking Serbia.  (It should be noted that the KLA at the time it acted to draw NATO into its bid for independence from Serbia was on the U.S. list of terrorist organizations, which is not true of independence groups in Crimea seeking Russian assistance.)

In addition to invitation, President Putin has argued “that the people of Crimea, a mixture of Russians, Ukrainians and Tatars, should be allowed to ‘determine their own future,’ comparing them pointedly to Kosovars, who, after a NATO air war, ultimately declared Kosovo’s independence from Serbia in 2008.”  The United States never put forward any legal justification for the use of force in the Kosovo Crisis of 1999.  On a classical reading there was no justification.  Recently, Harold Koh writing in a blog post tried to defend the Obama administration’s advocacy for an attack on Syria in August and September as well as the 78-day bombardment of Serbia in 1999. He said both could be compared to the desegregationist position in Brown v. Board of Education.  The unlawful use of force in Kosovo and Syria was an attempt by the U.S. to change the law for the better.

Koh’s position is flawed in many respects as respondents David Kaye and Carsten Stahn point out.  The most basic logical flaw is that Koh attempts to defend an unlawful means to a good end—using unlawful military force to protect human rights with a means that is the good end: ending segregation in schools.

In the course of his argument, he also opines that the UN Charter is “obsolete.”  This word is, of course, the same used by Judge Alberto Gonzalez, who called the Geneva Conventions “obsolete”.  Secretary Kerry’s charge of aggression can, hopefully, be read as a rejection that the Charter is obsolete, that human rights can be protected through bombing and military force, or that there is ever any right to use military force to punish, as was advocated in Syria.

President Putin also argued that any armed groups in Ukraine were not Russian troops but local militias.  Russian Foreign Minister Sergei Lavrov has asserted the same.  This reminds me of the many arguments for the use of force during the Cold War.  Almost invariably the U.S. or the Soviet Union would attempt to manipulate the facts, but not attempt to distort the law.  They wished to hold each other to the international community’s law.  From Hungary to Vietnam to Czechoslovakia to Afghanistan to Nicaragua to Grenada to Panama, “invitations” were obtained in one way or another.

If these manipulations of the facts were ever accepted, in our age of social media with cameras everywhere, there is really little chance of succeeding with such fiction in the future.  True, the U.S. fiction of being involved in a worldwide “armed conflict with Al Qaeda, the Taliban, and associated forces” seems still to be accepted in some quarters.  That acceptance is likely based on preference for the policy of military attacks beyond armed conflict hostilities rather than real belief of a right to use military force in such situations.  Such attacks violated the restrictions on the use of force and should come to an end as the U.S. turns to international law to support Ukraine.

Putin also made counter-claims, citing U.S. actions

“… in Afghanistan, in Iraq, in Libya, where they acted either without any sanction from the U.N. Security Council, or distorted the content of these resolutions, as it happened in Libya,’ … ‘There, as you know, only the right to create a no-fly zone for government aircraft was authorized, and it all ended in the bombing and special forces in ground operations.’ …”

Putin is correct about the serious breach of Article 2(4) involved in Iraq and the excessive use of force in Libya and even Afghanistan.  Unfortunately for Russia, in international law on the use of force, the wrongdoing of one state does not justify the wrongdoing of another.

The international community should come together to support Ukraine’s rights under international and reiterate the importance of rules against aggression and all forms of the unlawful use of force.