Commentary“…Ukraine is not just a neighbouring country for us. It is an inalienable part of our own history, culture and spiritual space. These are our comrades, those dearest to us – not only colleagues, friends and people who once served together, but also relatives, people bound by blood, family ties.”
— Address by the President of the Russian Federation, February 21, 2022.
Russian President Vladimir Putin and his Kremlin advisers did not appear to give much consideration to the international law issues arising from their “special military operation” in Ukraine. Nonetheless, as lawyers we need to assess their claims. In making these assessments we must not overlook the fact that Moscow was an ally of the West in the Second World War, or as Russia calls it, the “Great Patriotic War of the Soviet People.” The Soviet Union was a founding member of the UN, and Russia remains a permanent member of the UN Security Council. This makes enforcing international law against Moscow more difficult, as it possesses a veto power in the Security Council, but this has not stopped the West from imposing unprecedented and expansive sanctions against the Kremlin and Russia’s largest financial institutions.
The conflict in Ukraine is the result of a longstanding economic, geopolitical, and cultural rift between Big Brother (Russia) and Little Brother (Ukraine) over the status of the borderlands on the edge of Eurasia (“okraina” in Old Russian) that separate the former Russian Empire/Soviet Union, now the Russian Federation, from what is popularly referred to as “the West” – especially the members of NATO – and the European Union. These borderlands include Belarus and Ukraine, which had been constituent republics of the former Soviet Union. Whereas Belorussian President Alexander Lukashenko knows who butters his bread, Ukraine’s leaders have been looking to the West for help in breaking their dependence on Russia for the past decade. This has been noticed by the Kremlin, which has taken umbrage at its diminished influence.
Russia’s complaints about NATO expansion, which it views as an anti-Russian security alliance, combined with Ukraine’s economic and cultural tilt towards the West, following the Euromaidan protests in 2013, precipitated the latest crisis. And it is not surprising that Russia’s central demand in its negotiations with Ukrainian leaders concerns Kyiv’s neutrality and the granting of autonomy to those areas of Ukraine that are home to large Russian minorities – as provided for in the Minsk Agreements of February 12, 2015. Putin’s modus operandi in Ukraine – assassinations, armed forces, blackmail, coercion – violate a host of international rules, but enforcing these rules against a permanent member of the UN Security Council would require direct conflict between the superpowers.
A direct conflict between the superpowers is obviously something that sensible people want to avoid. Moscow is an economic minnow, but it remains a powerful military actor. The Kremlin has already put its nuclear forces on high alert. Any direct conflict between Russia and the West could also involve the People’s Republic of China (PRC), and it is telling in this regard that Moscow and Beijing published a joint statement on the “International Relations of a New Era” a few weeks before the war. As US President Joe Biden has warned, a direct confrontation between the superpowers would risk World War Three. Despite the horrible scenes of armed conflict and the refugee crisis on our TV screens, tablets, and smartphones, we should not overlook the risk of nuclear war in our legal assessments.
The Legal Arguments
The formal legal claim made by President Putin in his February 24th speech to justify his special military operation in Ukraine was based on an invitation from the pro-Russian leaders of the Donetsk and Lugansk People’s Republics for protection, territories that Russia had recognised as independent states only two days earlier. An alternative claim was also made regarding a supposed genocide occurring against Russian speakers in Ukraine, which has echoes of a humanitarian intervention claim. The invocation of human rights to justify the unilateral use of armed force is not widely recognized as a legitimate ground for employing force in international law. Nonetheless, NATO member states relied on a humanitarian intervention claim to justify their 11-week aerial bombardment of Belgrade from March 24 – June 19, 1999.
In Russia’s submission to the International Court of Justice (ICJ) concerning a Ukrainian application for provisional measures, Russia presented an additional justification: it claimed that its military intervention in Ukraine was related to the right of self-determination of peoples under the UN Charter and customary international law, including the 1970 Declaration of Principles of International Law concerning Friendly Relations and Cooperation amongst States in accordance with the UN Charter.
By raising a self-determination claim, the Russian Federation appears to be saying that states have a right to intervene in the territories of other states, even by force, if necessary, when these states do not conduct themselves in compliance with the principle of equal rights and self-determination of peoples. This could arise, for example, when a state has a government that does not represent the whole people belonging to the territory without distinction as to race, creed, or color. This claim resembles that of the old Soviet doctrine of national self-determination, when Moscow supported wars of national liberation to overthrow racist governments in colonial Africa during the Cold War. In presenting this claim, the Russian Federation appears to be suggesting that the government in Kyiv does not represent all Ukrainians because of its suppression of Ukraine’s Russian minority.
This claim, even if justifiable on the facts, would be highly destabilizing, as it would provide states with a pretext to invade neighboring states that persecute racial, religious, and ethnic minorities. It is not a legitimate ground for intervention in international law.
Preventive War
There was another claim that was made by Putin to justify Russia’s invasion, which would appear to be the real reason he initiated the hostilities and that is based on the notion of a preventive war. A preventive war is one that is initiated to prevent an existential threat from materializing before it becomes too late to stop it. Preventive war is directly inimical to the concept of self-defense in Article 51 of the UN Charter that is framed as a response to an armed attack or an imminent threat of attack. A preventive war is illegal. This might explain why Putin did not rely on it to justify the legality of the invasion. But a close reading of his speeches reveals a preventive war rationale.
Consider the text of Putin’s February 21st speech, where he referred to the supply of billions of dollars of arms and equipment that had been sent to Ukraine from the US and other countries. He also referred to the development of tactical nuclear weapons by Ukraine that could be developed in a relatively short amount of time because of technologies Kyiv inherited from the Soviet era, with missiles that could strike Moscow in four to five minutes. Putin described the threats from these weapons, “like a knife to the throat.”
Putin’s concerns about Ukraine’s nuclear potential may explain why Russian forces were quick to seize key nuclear sites. However, developing nuclear energy, nuclear weapons, and the means and willingness to use them are entirely separate issues. Even if Kyiv were developing nuclear weapons, this did not mean they would use them, or that a nuclear strike was imminent. When Israel invoked a preventive war rationale to justify its destruction of a French nuclear reactor that was being built in Iraq by Saddam Hussein’s government in the early 1980s, the UN Security Council unanimously rejected Israel’s claim. In the debate, the Soviet Union described Israel’s bombing of the reactor as “a clear violation of the Charter of the United Nations and the norms of international conduct.”
Another, more recent example, of a preventive use of force, was the US invasion of Iraq in 2003, when the US claimed that it had the right to invade the territory of an adversary if it suspected that it was developing weapons of mass destruction even if an attack was not planned or in the making. The pretext for the US-led invasion of Iraq was invented and the war was widely condemned by other nation states. It cannot be invoked as a precedent for violating a core norm of international law. A preventive war is tantamount to the crime of aggression. It is patently unlawful.
The Prohibition of the Acquisition of Territory by Force
In addition to Russia’s spurious legal justifications for employing force in Ukraine, Putin has also advanced a historic rationale for seizing Ukrainian territories that are home to large Russian minorities.
We can glean some insights into President Putin’s thinking about the status of these territories from revisiting his article, “On the Historical Unity of Russians and Ukrainians” (July 12, 2021). In this article, Putin referred to an expert opinion by his former mentor, and law professor, Anatoly Sobchak (1937-2000), the first mayor of Saint Petersburg, who expressed his view that the former Soviet Republics (like Ukraine) that had denounced the 1922 Union treaty, when they proclaimed independence in the 1990s, would have to return to the borders they had before joining the Soviet Union. This logic would result in a far smaller Ukrainian state – without Donetsk and Lugansk, which have been recognized as “independent republics.” In theory, this logic could also justify the recognition of the port city of Odessa that was once part of historic Novorossiya as part of an “independent republic” in close association with Russia.
The recognition of territory acquired by force violates another core norm of international law. Unfortunately, it has been seriously undermined, not just by President Putin, but by the US, which under former President Donald Trump recognized the acquisition of territory acquired through the use of force in the Middle East and Western Sahara.
The Expansion of NATO after 1991
Following the collapse of the Soviet Union, when the Warsaw Pact was dismantled, NATO expanded eastward right up to the borders of Belarus and Ukraine within the former Soviet Union’s sphere of influence. In Putin’s view, NATO’s expansion breached oral promises from American officials that NATO would not expand further. This is not an errant view. The Estonian international lawyer Rein Müllerson, who was an adviser to Mikhail Gorbachev, Chairman of the Supreme Soviet of the USSR, from 1987-1991, after reviewing recently declassified American government documents from that period, expressed his view that the “gentlemen’s agreements” given in oral form to Soviet leaders by US leaders at the end of the Cold War created legal obligations that have been breached by successive US Presidents.
In his February 21st speech, Putin said that NATO’s expansion was not just deceitful, but also threatening, because it would allow the US to place offensive, and not just defensive, military infrastructure at Russia’s borders. These include land-based attack weapons and missiles, which according to Putin, could strike deep inside Russian territory. Putin made specific mention of recent upgrades to Ukrainian military infrastructure and the placement of assets that would give it a first-strike capability.
Although NATO denies that its ballistic missile defense system is directed at Russia, in his February 24th speech, Putin complained that a NATO military presence in territories bordering Russia, if permitted to go ahead, would “stay for decades to come or maybe forever, creating an ever mounting and totally unacceptable threat to Russia.” A similar claim was made by former US President George W. Bush on the day the US invaded Iraq. The US had decided to invade, Bush said, “because the risks of inaction would be far greater. In one year, or five years, the power of Iraq to inflict harm on all free nations would be multiplied many times over.”
Imperfect though the analogy may be, one might ask how the US would react if the Soviet Union had won the Cold War and expanded the Warsaw Pact to include all Western Europe, and then offered Canada a Membership Application Plan to join the Pact. It is likely that Washington would do everything in its power to prevent that prospect from materializing.
The Failure to Exhaust Negotiations
Putin’s concerns about NATO expansion were the subject of negotiations between the Russian Federation and the US throughout most of 2021 and early 2021, although it is not clear if they had been exhausted before Moscow committed its troops to armed conflict. Either way, Putin accused the US of bad faith in his February 21st speech.
In December last year, Russia presented the text of two draft treaties, one with NATO, and the other with the US, which were both published on the Kremlin’s website outlining suggested security arrangements between Russia, NATO, and the US, but no agreement was reached.
Given that Russia’s foreign minister Sergey Lavrov was scheduled to speak to US Secretary of State Anthony Blinken the day after the Russian Federation recognised the Donetsk and Lugansk People’s Republic, which was subsequently cancelled by the American side, it would appear that diplomatic options had not been exhausted before Russia committed its armed forces to war with Ukraine.
Sowing Security Council Divisions
This is a dangerous war, not just because of the horrible suffering it is inflicting on the Ukrainian people, but because of its potential to spread, not just to Europe, but potentially even further afield. It risks also furthering divisions in the UN Security Council and drawing Russia and the PRC closer together.
In their joint statement published on February 4th, just weeks before the war, Russia and the PRC said they would “stand against attempts by external forces to undermine security and stability in their common adjacent regions.” This included working together to oppose external interference and “colour revolutions.” Both Russia and the PRC said they were opposed to any further enlargement of NATO and called on the Alliance “to abandon its ideologized cold war approaches, to respect the sovereignty, security and interests of other countries, the diversity of their civilizational, cultural and historical backgrounds, and to exercise a fair and objective attitude towards the peaceful development of other states.” Russia and the PRC explained that there were “no forbidden areas of cooperation” between them, and said they were opposed to the return of an international relations associated with an era “when the weak fall prey to the strong.”
Russia and the PRC also denounced the formation of the trilateral security partnership between Australia, the US, and the UK (AUKUS), especially their decision to initiate cooperation in the field of nuclear-powered submarines. This specific concern echoed an earlier complaint of Russia’s foreign minister Sergey Lavrov, when, in June last year, he condemned the West for trying to force Russia and the PRC to abide by their “rules-based world order” comprised of a concert of democracies as opposed to the universal principles of international law enshrined in the UN Charter. In other words, for Russia and the PRC, international law should be applied to all states whatever their ideological systems, not just to the West, which had become too accustomed to being able to impose its will on the rest.
It might be questioned whether the West is really committed to the promotion of a rules-based order, as opposed to their conception of a Western-dominated order, given the involvement of NATO member states in the conflicts that led to regime changes in Serbia, Iraq, and Libya.
In response to remarks from NATO Secretary General Jens Stoltenberg that China should join the rest of the world in condemning Russia, Beijing reminded Stoltenberg of NATO’s bombing of its embassy in the former Yugoslavia. A spokesman for the PRC’s diplomatic mission to the European Union said that China did not need “a lecture on justice from the abuser of international law.” The Global Times was characteristically blunter: “NATO is a puppet of the US, a Cold War military bloc manipulated by the US. The obsolete military organization has launched many ruthless military aggressions and triggered corresponding disasters in which local people underwent great suffering. NATO’s aerial bombing campaign against the Federal Republic of Yugoslavia in 1999 during the Kosovo War is one example.”
Although there is nothing novel about ideological divisions in the UN Security Council, the fact that the US, the UK, and France, on the one hand, and Russia and the PRC, on the other hand, don’t even appear to agree on the basic rules of international law is concerning. Add a hot war on the Russian borderlands with Europe and American accusations that the PRC is aiding Russia militarily, and we enter treacherous territory.
Conclusion
The war in Ukraine presents international lawyers with a conundrum because the functioning of an international legal order depends ultimately on the cooperation of states. A generation of international lawyers grew accustomed to a unipolar world order in which the US was the uncontested military superpower. Whilst the claim that the US is in decline is premature, there is little doubt that Russia and the PRC are seeking to create a polycentric world order. Indeed, they were explicit about this in their February joint statement. Accordingly, we are witnessing in real time, an attempt by Russia and the PRC to challenge the post-1989 global order.
The difficulty with the war in Ukraine is that there are few realistic options to stop it. When there is the potential for armed conflict between the permanent members of the UN Security Council there are no enforceable rules that govern the situation other than recourse to force. Accordingly, there is no enforceable legal order to temper what is happening in Ukraine. This makes it more frustrating for those who believe in rules and global institutions. But we need to be realistic. International criminal courts and proposals to establish special tribunals are not going to be able to get any warm bodies in The Hague, despite the ICC’s recent issuance of arrest warrants for Russian officials involved in alleged crimes committed during Russia’s invasion of Georgia in August 2008. Nor will they be able to prosecute Putin and his Kremlin colleagues unless they are overthrown in a coup, and then transferred to these courts. All indicators point to a long-drawn-out war with no clear winners and continued suffering for the Ukrainian people.
Victor Kattan is a Nottingham Senior Research Fellow at the School of Law at the University of Nottingham. He can be found at https://twitter.com/VictorKattan and https://www.nottingham.ac.uk/Law/people/victor.kattan
Suggested citation: Victor Kattan, Big Brother v. Little Brother: A Critical Analysis of Russian President Vladimir Putin’s Legal Justifications for Russia’s Preventive War in Ukraine JURIST – Professional Commentary, March 18, 2022, https://www.jurist.org/commentary/2022/03/victor-kattan-russia-ukraine-legal-justifications/.
This article was prepared for publication by Rebekah Malkin, a JURIST staff editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org
