Acts of Aggression During an Ongoing Armed Conflict: How Can We View the Events of February 24?

[Agata Kleczkowska is an Assistant Professor at the Institute of Law Studies of the Polish Academy of Sciences in Warsaw, Poland.]

Since February 24, the international community has been discussing Russia’s ‘attack’, ‘aggression’, ‘invasion’, or ‘assault’ against Ukraine. While certainly all of these terms rightly describe what happened in Ukraine on the morning of February 24, many seem to forget that there has been an ongoing international armed conflict between Russia and Ukraine since 2014. That is the position supported by many scholars, States, international organizations, and NGOs (for examples of such views see here, here, or here). As a participant of the project ‘Countering impunity for war crimes and crimes against humanity in Ukraine: Visegrad contribution’ funded by the Visegrad Fund, I have read many reports from the scene that also confirm proof of direct Russian involvement in the overwhelming majority of crimes committed in Eastern Ukraine since 2014. It is true that the fighting in Eastern Ukraine lost its intensity since 2016, which nevertheless does not mean that it has stopped for good; several acts have been committed in recent years by Russian forces or by Russian proxies which could potentially be qualified as war crimes.

To sum up the facts: there is an ongoing international armed conflict between Ukraine and Russia, which since 2016 has not involved major clashes. Until February 24, 2022, the conflict was confined to Eastern Ukraine and Crimea. On February 24, Russia conducted a full-scale attack against the wider Ukraine (apart from Crimea and Eastern Ukraine), with the aim of taking control of the entire State.

Given that, what is the attack that started on February 24, 2022 from the perspective of international law? Is it just another offensive during an armed conflict that has lasted since 2014? Or should the attack that started on February 24 be assessed by jus ad bellum rules? In this entry, I argue that what happened on February 24 counts as a separate act of aggression committed by Russia against Ukraine, despite the ongoing international armed conflict between these two States.

To start with, it must be highlighted that it is widely recognized contemporarily that jus ad bellum does not cease to apply at the moment when an armed conflict erupts, while the application of jus in bello is not limited only to armed conflicts. ‘Today it is generally accepted in legal doctrine that the jus ad bellum and jus in bello are complementary regimes and, depending on the type of armed conflict, apply simultaneously instead of in sequence.’ (p. 673-674). Thus, the mere fact that international armed conflict has existed between Russia and Ukraine since 2014 does not hinder the application of jus ad bellum to specific incidents.

There were similar cases in the past when an attack carried out during an ongoing armed conflict was assessed within the jus ad bellum framework. One example may be the international armed conflict between Syria and Israel. In 1967 the international armed conflict erupted between Israel and the Arab States, including Syria (the so-called Six Days War). As a result of the conflict, Israel started to occupy Golan Heights, part of Syrian territory. After that point, there have been multiple armed incidents between Syria and Israel. When on October 6, 1973, the hostilities between Israel and Syria (and Egypt) were renewed on a full scale, both States accused the other of committing aggression and declared that they would exercise the right to self-defense (S/11009, S/11011, S/PV.1744). Thus, they referred to the jus ad bellum framework and did not claim that the hostilities were merely part of the ongoing armed conflict.

Referring that example to the case under review, Russia started its occupation of Crimea on February 27, 2014. The mere fact that an occupation lasts ‘does not eclipse the need for a proper legal basis under the jus ad bellum when one of the States launches a (new) attack against the other.’ (p. 676). A few weeks after the occupation started, the first fighting in Eastern Ukraine took place. Mutatis mutandis, the events of February 24, 2022 may be named as an act of aggression like it happened in 1973.

A reasonably similar situation also occurred when the international armed conflict between Ukraine and Russia was already active. On November 25, 2018, Russian border patrols stopped a Ukrainian tugboat and artillery boats in the Kerch Strait after firing on them and ramming them. If we assume that this was an incident within the ongoing armed conflict and assess the situation only from the perspective of jus in bello, international humanitarian law (IHL) allows a party to a conflict to target military objects, including belligerent warships, which renders the Russian action legal under IHL. Nevertheless, some States, including Lithuania, Estonia, the UK, and France explicitly called the Kerch Strait incident an ‘aggression’ or case of the ‘use of force’ (other States avoided making any legal qualification of the incident under jus in bello or jus in bellum). On December 17, 2018, the UN General Assembly (UNGA) adopted Resolution 73/194; in the first line of the preamble, it reminded all States about the content of the prohibition of the use of force. When it comes to Ukraine’s position, it named the Kerch Strait incident the act of aggression, but on the other hand, called the arrested crew from Berdyansk, Yani Kapu, and Nikopolout ‘prisoners of war’ and demanded that the rights of Ukrainians be respected in accordance with the Geneva Convention (III) Relative to the Treatment of Prisoners of War of 1949. That means that Ukraine considered the Kerch Strait incident as an act of aggression despite the ongoing armed conflict, as well as applied both jus in bello and jus as bellum framework to the incident. That was also the attitude adopted by some other States and implicitly included in the UNGA Resolution 73/194.

How can this situation be explained? Any initiative that broadens the scope of an armed conflict is unlawful. Greenwood points out that ‘The traditional assumption that the outbreak of war between two states necessarily involved hostilities  between their armed forces whenever they might meet, even if it was thousands of miles away from the scene of the dispute, can no longer be regarded as valid.’ (p. 223). That was the case for the Kerch Strait incident, and that is now the case for the new Russian assault – before February 24, 2022, the international armed conflict between Russia and Ukraine was limited only to Eastern Ukraine and Crimea, while on February 24 Russia substantially broadened its scope by starting an attack on practically the entire territory of Ukraine, violating international law and committing aggression.

A more controversial way to argue that the Russian attack on February 24 amounted to aggression is by applying a specific interpretation of the principle of equality of belligerents, one of the IHL cornerstones. The principle means that ‘IHL applies equally to all parties to an armed conflict and imposes the same obligations on them’. While it is certainly true that any proposal to ignore this principle would undoubtedly lead to the collapse of protection provided by IHL, ‘there may be some merit in subdividing the jus in bello into several legal layers.’ (p. 158). A similar opinion was also expressed by the Institute de Droit International, which stated in 1963 that, although humanitarian obligations imposed on belligerents ‘are always in force for the parties in all categories of armed conflicts and apply equally to actions undertaken by the United Nations’, nevertheless ‘there cannot be complete equality in the application of the rules of the law of war when the competent organ of the United Nations has determined that one of the belligerents has resorted to armed force in violation of the rules of the law of nations consecrated by the Charter of the United Nations.’ (p. 376).

Given that, one may offer the following interpretation of the principle of equality of belligerents: no derogation from the principle is possible when it comes to the protection of individuals during times of armed conflict. However, the state of the armed conflict and the rights granted to the parties to the conflict under IHL cannot be used by the aggressor to broaden the scope of an armed conflict, either in terms of geography, methods of warfare, or targets, as such situation will not be treated as legal under jus ad bellum.

To conclude, States’ actions escape any strict schemes, and the limits of application of jus ad bellum and jus in bello is a good example of that. Thus, automatically applying certain rules is impossible; one always has to take into account the circumstances, goals, and means employed by States. This does in no way mean that international law can be abused. On the contrary – sometimes sticking rigidly to a framework – like applying jus ad bellum only until the launch of an armed conflict, and after the launch only jus in bello – could actually lead to serious abuse of the law.