The threat of Russian intervention in Ukraine has caused American lawyers and diplomats to raise their voices about the legality of Russian military action in Ukraine. These complaints, however, are based more on political rhetoric and posturing than on an understanding of international law. In fact the most recent practices of states using force against other states show that perhaps it is the United States that is violating international law once again.
In using force against first Afghanistan and then Iraq in a period of less than three years, the US acted in violation of Article 2, Paragraph 4, of the Charter of the United Nations. This provision of the Charter prohibits the use of force against the territorial integrity or political independence of another sovereign state. Without a doubt the terrible bombing of these two countries—which killed millions of Afghanis and Iraqis—was a use of force against both the territorial integrity and political independence of these two countries.
In the case of Libya, the US and NATO claimed that it was authorized to use force by the UN Security Council. Russia and China challenged this assertion, claiming that even if the US and NATO were correct in interpreting UN Security Council resolution to authorize the use of force, the US and NATO action had gone much further than authorized. The US and NATO bombing of Libya's infrastructure took the country from being the richest country in Africa—and on track to attain all the UN's Millennium Development Goals—to a failed State. Thus even if the Security Council authorized the use of force in Libya, it likely violated fundamental human rights of the Libyan people in a massive and widespread manner. Such a violation of Libyans' rights is inconsistent with the Charter's obligations in Article 55 and 56 that all states cooperate to achieve development and respect for human rights. It also violates Article 2, Paragraph 4, of the Charter, which prohibits the use of force "in an other manner inconsistent with the purpose and principles of the UN."
Syria is another example where international law is not only applicable but has been manipulated. As a sovereign state, Syria is allowed to seek international assistance to maintain its public order and to provide security to its people. When civil war broke out in Syria, foreign states were legally entitled to assist the government in pacifying the country. Under international law, states are not allowed to provide weapons to non-state actors and they act in violation of international law when they do so. Non-state actors can only justify the use of force if they are recognized as a National Liberation Movement. The Syria's foreign backed rebels were not. When foreign states support such a group, they commit a serious violation of international law. They violate the injunction against states from interfering in matters that are essentially within the domestic jurisdiction of another state. This prohibition—like the prohibition against the use of force—is laid down in the UN Charter. It is found in Article 2, Paragraph 7.
But Syria has also been a good example of the use of international law. In an enhancement of the status of international law, the negotiations with the US concerning NATO and US plans to intervene in Syria using force frequently referred to the applicable international law. The US alleged that its intervention—even if not authorized by the UN Security Council—was legitimate. Russia countered by arguing it was inconsistent with international law. The Russians pointed out to the Americans that the use of force against Syria—a sovereign State—was a serious violation of international law via the UN Charter. They also pointed out that—despite the US claim that the use of force was legitimate—the US could point to no justification for the use of force that was generally accepted as international law.
Moreover, the Russian negotiators in Geneva highlighted that the US had a legal obligation under international law not to arm non-state actors that were seeking to overthrown the sovereign government of Syria, particularly since that same group may have carried out chemical weapons attacks which the Syrian government was being accused of orchestrating. Some observers went so far as to point out to US Secretary of State John Kerry that he and President Obama might be liable to prosecution for international crimes if they authorized the use of force against Syria without a clear UN mandate. In this situation, the US backed down and accepted a negotiated solution. International law once again prevailed.
The recent situation in the Ukraine also raises questions of international law; however, American lawyers and diplomats are once again trying to contort the law to make it fit their political agenda. Again, it is Russia that is left in the position of apparently defending international law.
While American lawyers and diplomats claim that the use of force against the Ukraine is illegal, they forget that the elected President of the Ukraine is requesting it. When the legitimate government of a state requests foreign assistance, it can receive it under international law. The provision of assistance to another government, even military assistance, is consistent with international law.
The case is much different when foreign governments interfere in the domestic affairs of a state to change its government because they do not like it. In Ukraine this is exactly what the US and the EU did, not merely by expressing their political opinion from abroad but by sending money, weapons and advisers to the non-state actors who eventually stormed government buildings and caused the elected-government to flee through the use of force against it.
In such a situation, Russia's continued recognition of the elected government as a government that is entitled to assist if it so requests is consistent with international law. Such assistance must, of course, conform with the rules of international law relating to the use of force by the states against its citizens. However, when a state acts—even using necessary force—to restore the public order, which includes securing the elected government. The state and those who support it are then acting in accordance with international law, not contrary to it. Any action from foreign countries to prevent Russia from assisting the elected government would itself be inconsistent with international law as an interference with a domestic affairs of a State that has requested assistance.
Now that the elected President of the Ukraine—Viktor Yanukovich—has requested Russian assistance—including military forces—in writing, US President Obama is wrong in claiming that Russia is violating international law. In fact, action taken by the US to prevent Russia from assisting the elected government in the Ukraine is likely a violation of international law to the same extent that the United States and European efforts to change the government of the Ukraine were inconsistent with the prohibition of interference in the internal affairs of the Ukraine without the permission of its government.
More problematic is the Russia justification of intervention to protect its nationals in the Crimea region of Ukraine. Although the United States tried to justify its invasions of Grenada and Panama on this ground, there is little support for such a justification of the use of force under international law. Again, however, such an illegal action may be made legal under international law if the elected government of the state requests it. And again, it is the elected President of the Ukraine that has requested Russia's assistance to protect vulnerable Ukrainians.
More important and constructive for the development and application of international law are the indications from Russia that it wants to exhaust all peaceful means to resolve the situation in the Ukraine. As part of these efforts, Russia is calling for the people who took power by force in the Ukraine to talk with the elected government and to express their assurances that they will honor the Ukraine's international agreements as international law requires.
It is perhaps ironic that its is Russia—a superpower during the cold war that still possess one of the world's largest weapons arsenals and armies—that is relying on international law to triumph over brute force. Nevertheless, it is a testimony to the resilience and relevance of international law that even states with the propensity to act on the mere basis of the use of force feel compelled to resort to international law to justify their actions. And it is even better when the legal arguments are based on a consensual understanding of the law shared by most states; even if some states claiming extraordinary privileges that run counter to the rule of international law, have to be increasingly ignored.
Curtis Doebbler is a Visiting Professor in International Law at the Geneva School of Diplomacy and International Relations as well as a visiting adjunct professor of law at Webster University. Dr. Doebbler received a JD from New York Law School, a Ph.D. in public international law from the London School of Economics and Political Science, as well as a diploma in International Law by The Hague Academy of International Law in the Den Haag, Nederland. He has represented clients that include heads of state, governments, NGOs, and some of the most vulnerable and oppressed individuals across the world in the International Court of Justice, the African Commission, the US Supreme Court, the United Nations Administrative Tribunal Court of Human Rights, and other UN Treaty bodies. Almost all of his work is done pro bono. Dr. Dobbler has also received numerous awards for his work and is highly published.
Suggested Citation: Curtis Doebbler, Coming to Ukraine: The Hypocrisy of the American Understanding of the International Law, JURIST - Forum, Mar. 11, 2014, http://jurist.org/forum/2014/03/curtis-doebbler-ukraine-hypocrisy.php
This article was prepared for publication by Kenneth Hall, assistant editor for JURIST's Academic Commentary service. Please direct any questions or comments to him at email@example.com