Russia's war in Ukraine destroys what remains of int'l law

In Russia's war in Ukraine, Putin destroys what remains of international law
6 min read

Anna-Christina Schmidl

28 February, 2022
Russia's attack on Ukraine is the latest in a series of bloody events in the 21st century - from the War on Terror to Syria - that is rapidly unravelling the very fabric of the international legal order, writes Anna-Christina Schmidl.
Demonstrators with yellow and blue Ukraine flags and anti-war signs in Downtown Nathan Phillips Square during a demonstration against the Russian invasion in Ukraine in Toronto, Canada on 27 February, 2022. [Getty]

In the early hours of Thursday morning, Russian ground troops entered Ukrainian territory in what could develop into the first major war on European soil in decades. In addition to the looming spectre of a humanitarian catastrophe that war inevitably brings with it, Putin's move undermines basic tenets of the international order that emerged after the Second World War and constitutes the UN's latest failure to prevent conflict and human suffering.  

There is universal agreement that Russia's invasion of Ukraine breaches fundamental principles of international law: in order to "save succeeding generations from the scourge of war", Article 2(4) of the UN Charter – which has been identified as one of the Charter's "cornerstones" – imposes on all UN member states a blanket prohibition on the "threat or use of force" against other states, with two narrow exceptions: self-defence and authorization by the UN Security Council. Neither is applicable here – Ukraine has neither threatened nor attacked Russia and its citizens, Putin's unsubstantiated claims to the contrary notwithstanding, and the Security Council has been trying to avert a Russian attack at the eleventh hour.

Furthermore, as Kevin Jon Heller and Frédéric Mégret argue in a recent op-ed for Aljazeera, Russia's full-scale invasion also qualifies as an "act of aggression" as defined in General Assembly Resolution 3314 – a particularly egregious violation of Article 2(4), which also outlaws mere threats of force. As Heller and Mégret note, the severity of aggression as a breach of international law is evident from the fact that it not only gives rise to state responsibility but also amounts to an international crime within the jurisdiction of the International Criminal Court (ICC) – meaning, in principle, that political and military leaders can be prosecuted for it (if the other preconditions for the exercise of the Court's jurisdiction are met).

Benjamin Ferencz, the former Chief Prosecutor at the 1947-1948 Einsatzgruppen Trial of Nazi war criminals of the likes of Otto Ohlendorf and Paul Blobel, lobbied tirelessly for the inclusion of aggression into the Rome Statute of the ICC. In one of his articles, Ferencz cites the determination of the International Military Tribunal at Nuremberg that aggression constitutes "the supreme international crime" – because it is often a precondition and fertile ground for serious human rights violations, war crimes, and crimes against humanity. In Ferencz's words, "war makes murderers out of otherwise decent people".

The second fundamental pillar of the post-World War II order which in many ways flows from the first – the prohibition on the use of force including aggression – is the principle of collective security. If presented with a breach of this prohibition, then the international community has resolved to respond collectively, not unilaterally, via the primary international body mandated to "maintain international peace and security" – the UN Security Council. If the Council determines that there is a threat to the peace, breach of the peace or act of aggression, it can take enforcement action under Chapter VII of the Charter which may include, in the first instance, "measures not involving the use of armed force" or, if proven ineffective, "action by air, sea, or land forces".

That the Security Council has these enforcement powers is primarily a result of "lessons learnt" from the failures of its predecessor – the League of Nations set up after World War I – whose members watched helplessly as Imperial Japan invaded Manchuria (1931-1932), Fascist Italy conquered Abyssinia (1935-1936), and Nazi Germany remilitarized the Rhineland in violation of the Treaty of Versailles (1936) before proceeding to occupy the parts of Czechoslovakia it had not yet annexed (spring 1939). With Nazi Germany's invasion of Poland in September 1939, the whole of Europe soon stood in flames.  


It is comparatively more robust architecture notwithstanding, since the UN's inception adherence to collective security – as well as the UN's proclaimed commitment to universal human rights – have at times been more myth than reality: during the Cold War, both the US and the Soviet Union supported opposing sides in numerous brutal proxy conflicts across the globe, from Viet Nam and East Timor to Afghanistan and Operation Condor, which a paralyzed Security Council was neither able to prevent nor resolve; in 1980, Iraq's Saddam Hussein renounced the Treaty of Algiers on live television before attacking Iran.

A brief period of optimism in the wake of the peaceful dissolution of the Soviet Union – which famously prompted political scientist Francis Fukuyama to declare the impending "end of history" – was soon overshadowed by the bloody war that tore apart the former Yugoslavia and 100 days of genocide in Rwanda. The early 2000s saw the so-called "war on terror" and the flagrant violation of international law that was the Iraq war, the US government's elaborate attempts at justification notwithstanding; and ask Syrians after more than a decade of state torture, barrel bombs and chemical weapons attacks courtesy of the regime and its Russian allies – or Yemenis facing the world's worst humanitarian crisis because the Saudi-led coalition and Houthis both use starvation as a weapon of war – about the merits of collective security and the international human rights system.  

If at times one can rightly despair about the effectiveness of the wider UN system – keeping in mind that the world is surely better off with it than without – the Security Council's emergency session on Ukraine last Wednesday night must be a new low even for this bloody 21st century, with the Russian government making a mockery in all but name of the body in which it holds permanent membership: while the very Council tasked with maintaining international peace and security was deliberating how to avert war – under Russian chairmanship, nonetheless – President Putin declared the beginning of a "special military operation" in eastern Ukraine's Donbas. Putin seemed emotional, driven by invisible enemies, not afraid to raise the spectre of nuclear war and wider conflict on the European continent to reclaim what he perceives as Russia's rightful place in the world; dropping all pretence of diplomacy, he acted on the famous words that Thucydides put into the mouths of the Athenians during the siege of Melos: that "the strong do what they can and the weak suffer what they must."  

As Russian troops continue their advance on Ukrainian territory, firing rockets on Kyiv, Haile Selassie’s prophetic words to the League of Nations following Italy's invasion of Abyssinia ring in one's ear: "It is us today. It will be you tomorrow."

Anna-Christina Schmidl is a human rights researcher and writer currently based in Germany.

Follow her on Twitter: @AnnaCSchmidl

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Opinions expressed in this article remain those of the author and do not necessarily represent those of The New Arab, its editorial board or staff.