Article 103 to the Rescue: A Few Thoughts on the Legality of Russian Claims Under the Genocide Convention, Jus Cogens Duties and Preventive Self-defense

[Moisés Montiel Mogollón is a lawyer advising individuals, companies, and States on matters of international law, human rights, and other international areas at Lotus Soluciones Legales. He is an Adjunct Professor of International Law at Universidad Iberoamericana (Mexico City) and Universidad Panamericana (Guadalajara).]

In the wake of the Russian invasion on Ukraine, which the UN General Assembly has already politically qualified as an act of aggression, and, as Ignacio de Casas has pointed out, has seen an impressively strategic use of international litigation on the part of Ukraine, the international law community stands witness to what is perhaps, the Grotian moment of our times. Debates on whether international law is dead or alive (or in a quantum state worthy of Schrödinger’s cat) in the aftermath of Russia and Belarus’ evident and utter disregard for the so-called rules-based order, while interesting, provide little insight into more pressing matters of how to stop and deal with the Russian aggression.

A significant part of the battle for Ukraine is not being fought on the battlefield, but in the halls of The Hague, Strasbourg, New York, Geneva, and elsewhere. The weapons are not firearms and missiles but, rather, legal arguments. Specifically, the exchange of interpretations aiming to extend or restrict the rules of the use of force system are the means of combat for this particular arena. As Johnstone argues, states barter technical arguments under legal parameters to justify their actions, and Russia is no exception. This is partly why the international community continues to tolerate the Kosovo intervention in 1998 as ‘unlawful but legitimate’. In this context, Monica Hakimi has argued that all aggressions are equally wrong, but some more than others, as a result of the social construction behind the meaning and application of the use of force regime. While the point is indeed one that demands consideration, this claim threatens to make the entire use of force system relative and sequesters the discussion in favor of the tyranny of interpretive majorities. At this point in time, and as a matter of minding the destiny of the use of force regime, the compatibility with black-letter law of the legal arguments being put forth matters, and it matters a lot.

Putin’s government has offered a series of justifications for Russia’s use of force on Ukraine on different legal fronts. Chief among them is the claim that the eastward expansion of NATO is a direct threat to the security of Russia and therefore triggers Russia’s right of self-defense. There might be some merit to the first part of this claim on the political and military front, bearing in mind that NATO was born -basically- to keep the USSR (now Russia) in check; however, down law alley, this is an abuse of right. Ukraine is free to join whatever collective security arrangements it deems appropriate (without prejudice to the ability of Russia to attempt to deter or dissuade them by diplomatic and legal means) as a function of its sovereignty. Attempting to coerce Ukraine by force into abandoning its bid for NATO membership is the functional equivalent of claiming preventive self-defense. This is, in many ways, a destiny of NATO and friends’ own making. The claims for preventive self-defense put forth by the US and Israel, among others, seeking to justify their aggressions have sowed the land so that Russia may try and reap it. However, and as the majority of reactions to the Russian military operation have confirmed, the international community does not seem to want to buy what these countries are selling.

The other claim, far more interesting as a matter of legal analysis, being put forth by Russia is that it is acting in compliance with its duties under the Genocide Convention of 1948. In an extremely selective reading of articles I and VIII (especially the latter, in that Russia has ignored the “call upon the competent organs of the UN to” part), and allegedly giving effect to the duty outlined by the ILC, under Draft Conclusions 17 and 19 of the Fifth Report on Jus Cogens by Dire Tladi, to bring to an end any serious breach of a jus cogens norm (and the prohibition of genocide is one such rule, as the multiple Genocide Cases at the ICJ have confirmed time and time again). In that context, Russia has framed its “special military operation” in Ukraine as an instance of humanitarian intervention, implicitly recalling the “unlawful but legitimate” paradigm and the 2001 original RtoP language. This is why Russian statements qualifying Kiev’s policy towards ethnic Russians in eastern Ukraine as genocidal and aiming for ethnic cleansing have been so ubiquitous.

In fact, the Ukrainian position in its institution of proceedings against Russia to the ICJ under the basis of the Genocide Convention, and its request for provisional measures take note of this Russian claim in alleging that the latter’s actions constitute, essentially, an abuse of its rights under the Genocide Convention. This is definitely an uncommon way to frame the dispute before the ICJ, and one that will be put to the test on the 7^th and 8^th of March. However, leaving aside the arbitrary exclusion of the lawfulness requirements built into the Genocide Convention and the duty to suppress breaches of jus cogens norms as per the ILC, there is one more (and definitive) argument pointing towards the legal invalidity of the Russian justifications in its aggressive war against Ukraine: article 103 of the Charter aka the non-supersession clause of the UNC.

The article in question reads as follows:

“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

This provision was included in the Charter, arguably, to preserve the normative integrity of the treaty and, especially, the fundamental norms it enshrines concerning the use of force system. While there has been discussion on the material scope of application vis a vis other forms of obligations such as custom, it is undeniable that even if the Genocide convention could be twisted to allow a unilateral intervention on the part of Russia to halt a genocide, such a right would be voided by reason of its collision with the Charter’s non supersession clause . This would then cause the impossibility to trump, derogate, or effect desuetude into the use of force system laid out by articles 2(4) and 51 of the UNC (also bearing in mind that the prohibition of aggression is, in and of itself, a rule that allows no derogation). Read together with the forcible recourse to the UN Security Council to authorize any use of force different than self-defense triggered only by an armed attack, it would appear that the Russian claim of humanitarian intervention/compliance with the Genocide Convention/compliance with its duty to halt breaches of peremptory norms is legally inefficacious from the outset.

The operation of article 103 is also relevant in this context, seeing as both Russia and Ukraine are parties the UN Charter and the ICJ is very much likely to indulge in its contemplation as a forcible result of the Vienna Convention on the Law of Treaties of 1969’s article 31(3)(c) read concordantly with article 53. Incidentally, the impossibility to derogate from the UN Charter by effect of other treaties and obligations, would also lend support to the contention that the “preventive self-defense” claim is inoperative in this context.

Seeing the fast-paced nature of legal developments surrounding this invasion, it would be interesting to see if the Court actually takes up Ukraine’s case and, in doing so, applies article 103 to strengthen its analysis on the legality (or absolute lack thereof) of Russian actions contrary to Ukraine’s territorial integrity and political independence.