07 Mar Thou Shalt Not Distort the Language of International Law
[Sergey Sayapin is an Associate Professor and Associate Dean at KIMEP University’s School of Law (Almaty, Kazakhstan).]
The recent days have seen what is likely the most flagrant breach of the prohibition of the use of force since the Second World War. Commentators have already discussed a few aspects of this blatant act of aggression – such as the importance of the crime of aggression, the role of the ICC, a potential role of the UN General Assembly, and Ukraine’s new ICJ claim against Russia. This post will focus on Russia’s international law discourse in the context of the new wave of military violence against Ukraine. Russia is manipulating and distorting some key concepts, among other things, pertaining to peacekeeping, rules on the use of force, and international criminal law. It will be useful to discuss several recent examples of Russia’s official rhetoric, in order to expose how Russia is using the formal language of international law for attaining internationally unlawful goals.
“Peace Support Functions”
On 21 February 2022, President Putin signed Decree No. 71 “On the recognition of the Donetsk People’s Republic” and No. 72 “On the recognition of the Luhansk People’s Republic”. The texts of both Decrees are essentially identical. They refer to the “expression of will” by the respective “peoples” (para. 1), call for the establishment of “diplomatic relations” (para. 2) and the conclusion of treaties on “friendship, cooperation and mutual assistance” between the Russian Federation and the respective “Parties” (para. 3), and commit the Russian Federation to ensuring “the peace support functions” in the respective territories (para. 4) until the conclusion of treaties referred to in para. 3 (my emphasis – S. S.).
On 22 February 2022, the UN Secretary-General called Russia’s rhetoric a “perversion of the concept of peacekeeping”. He said explicitly that “[w]hen troops of one country enter the territory of another country without its consent, they are not impartial peacekeepers. They are not peacekeepers at all”. Putin’s reference to “peace support functions” was a mockery of international law also because it was meant to be exercised only until the conclusion of “treaties” with both separatist territories – which happened on 22 February 2022, making the purported “peace support functions” the shortest of their kind in history. On 22 February, President Putin signed the Federal Laws on the ratification of both treaties (see here and here). In accordance with Article 4 of both identical treaties, the Contracting Parties “shall provide each other with necessary, including military, assistance in the exercise of the right of individual or collective self-defence in accordance with Article 51 of the UN Charter”.
In his televised address of 24 February 2022, President Putin mentioned “self-defence” as a justification for the “special military operation”, which was to begin on the same day. He supported his argument by an explicit reference to Article 51, Part VII of the UN Charter. Unless he misspoke and meant Chapter VII of the UN Charter instead, he technically referred to a non-existent provision. If President Putin did mean Article 51 of the UN Charter, he must have misinformed his audience by not mentioning that the exercise of the right to self-defence in the sense of Article 51 requires the existence of an “armed attack” against a Member of the United Nations. Russia itself has not been a victim of Ukraine’s armed attack. Moreover, even if Putin wished to claim that his new “allies” – the Donetsk and Luhansk “Peoples’ Republics” – had been the victims of Ukraine’s armed attacks, he might still not invoke Article 51 of the UN Charter, because the “Republics” are not Members of the United Nations. As hypocritical as the invocation of self-defence was in the present context, an attempted reference to the “inherent” nature of the right to self-defence under customary international law would have been formally more convincing.
“Special Military Operation”
Notably, President Putin has euphemistically referred to Russia’s attack as a “special military operation”. This concept does not exist under international humanitarian law (IHL). The proper terms would have been “war” or “international armed conflict” in the sense of Article 2 common to the 1949 Geneva Conventions. However, obviously, Putin could not use any of these terms, because the aggressive term “war” would not have been approved by his supporters, and the meaning of the technical legal phrase “international armed conflict” may not have been understood by some of them. In turn, a “special military operation” sounds more positive, implies a relatively short duration, and suggests a likelihood of success – it may be recalled here that the annexation of Crimea is officially referred to in the Russia Federation as the “operation for the alignment of Crimea”. After 24 February 2022, some mass media reported that they had received guidelines from the authorities to the effect of avoiding the word “war” and using the term “special operation” instead. In any event, Russia must apply international humanitarian law in this international armed conflict, and be prepared to bear responsibility for its violations.
In the same televised address of 24 February 2022, President Putin alleged that Ukraine was engaging in a genocide of Russian speakers in both “newly recognised Republics”. This argument is not new. Already in 2014, Russia’s Investigative Committee instituted criminal proceedings on charges of alleged genocide of the Russian-speaking population in Ukraine’s eastern regions, and in 2018, I discussed why these charges were wrong in the sense of the 1948 Genocide Convention and Russia’s own criminal law. In brief, “[s]ince the corpus delicti of the crime of genocide does not cover linguistic groups, the invocation of this crime with respect to “Russian-speaking persons” in Ukraine is incorrect. Likewise, the Russian Federation has no criminal jurisdiction with respect to alleged genocide committed abroad, since such exclusive jurisdiction is limited to territorial States, and the International Criminal Court (ICC). Extending such jurisdiction extraterritorially, for the purpose of protecting “compatriots” abroad, is not in conformity with customary international law, and could be invoked by Ukraine as a violation of general international law” (p. 324). On 27 February 2022, Ukraine invoked a similar argument and filed a claim against the Russian Federation before the International Court of Justice. More specifically, Ukraine has “emphatically denie[d]” the charges of genocide and stated “that Russia has no lawful basis to take action in and against Ukraine for the purpose of preventing and punishing any purported genocide”.
Russia is playing with the language of international law, with the goal of misleading its own population and supporters in other countries. Enterprises like the aggressive use of force against Ukraine require popular support, and it is ensured by manipulating public opinion and misplacing concepts. Russia is using popular ignorance of international law and distorting its key notions, and it is the responsibility of international lawyers – especially in the post-Soviet space where Russia’s influence is significant – to clarify the correct meaning of relevant ideas, and to do so in plain language, so that non-lawyers would understand which rules of international law apply to a particular situation, and why. Many people do not question what they hear on the television, because (1) they uncritically trust the authority of the high-ranking sources of information, (2) not being international lawyers, they do not know where to check the veracity of relevant information, and (3) because they are being systematically indoctrinated to the effect that current rules of international law “do not work”, and “new rules” are required. The increasingly distorted international law discourse in some parts of the world requires a consistent counter-discourse aiming at reducing hostility against perceived “enemies”, and maintaining confidence and faith in international law and institutions. The current rules of international law are good enough to maintain international peace and security. Quite simply, they must be understood correctly, and measures against their distortion must be taken.