Is Ukraine The End Of International Law As We Know It?
OPINON / POLICY
Author: Prof. Rachael Lorna Johnstone
Photograph: David Wright
April 2022
For the dead, the bereaved, the injured, the homeless, the refugees, and others horribly affected by war, the technicalities of who against whom and why may not seem important. One cannot rank the atrocity of war and its impacts. Innocent people in Syria, Afghanistan, Tigray and many other places are suffering, and we must not close either our hearts or our doors to them.
However, from the international perspective, the Russian aggression and invasion of Ukraine are of a different nature. Each war is unique in its own terrible way, but the offensive against Ukraine shakes international law to the core. A State in possession of thousands of nuclear weapons and 900,000 active military troops is attacking its smaller neighbour without any possible legal justification.
Three weeks into Russia’s invasion of neighbouring Ukraine, Professor Rachel Lorna Johnstone, who specialises in Polar law and governance of the Arctic & Antarctic, wrote this opinion article pointing out why today’s war in Ukraine is “different”. That this is not a war of Russia v Ukraine, Russia v NATO or even Russia v ‘The West’. This is a war of Russia against the very foundations of international law.
Views we have since heard echoed e.g. by members of the UN Security Council.
Is this the end of international law as we know it? The end of the United Nations? Not yet. JONAA@David Wright
The Russian ‘case’ for war
Past wars have stretched the legal norms of the use of force in the absence of Security Council authorisation. Debates continue today regarding the validity of humanitarian intervention (Kosovo 1999 and Crimea 2014) and self-defence (Afghanistan 2001 and Iraq 2003). However, in each of these cases, while there could be reasonable disagreement on the facts as to whether the threshold for the use of force was met (some, admittedly, more reasonable than others), there was at least a prima facie legal case. Furthermore, there was an expectation that the parties using military force would respect the principle of proportionality, using a minimum of force to achieve their ends, and then withdraw. In Kosovo, Afghanistan and Iraq, there was no attempt to claim territory occupied initially through violence, something that is absolutely prohibited by international law. Even in Crimea, Russia does not justify the annexation of the Ukrainian territory based on its claim of humanitarian intervention or the de facto military occupation but rather on a spurious referendum that purportedly showed it was the will of the majority of the residents of Crimea to join Russia.
Russia’s professed justifications for the attack on Ukraine are as follows. There is an entirely unfounded allegation of genocide against Russian-speaking and Russian-identifying Ukrainians.[1] There is no evidence of this. None. And even if there were, that would justify interference to put a halt to the genocide; not to occupy the entire country.
Russia also claims, again without evidence, that there are crimes against humanity being committed against Russian-identifying Ukrainians.[2] The UN Human Rights Committee, a body of 18 independent human rights experts, reviewed the human rights situation in Ukraine in February 2022. While they had a number of concerns, including a failure to investigate and prosecute effectively violations against civilians during the 2014 conflicts, there is no indication that there are ongoing or immediate risks to the Russian-identifying Ukrainians.[3] Again, even if there were, that would justify measures to stop the abuses, including through UN human rights processes and the European Court of Human Rights; not to occupy the entire country.
People who have been colonised have rights that minorities do not
Russia’s last argument is that the Russian-identifying Ukrainians in the Donetsk and Luhansk Oblasts have exercised their right to self-determination and declared their independence. It is therefore exercising self-defence to protect the two new self-declared States from Ukraine. Russia even sent a letter to the UN Security Council reporting on its invocation of the right to self-defence as required by the UN Charter, though its explanation is a verbatim reproduction of Putin’s rambling speech to the Russian people of 24 February 2022.[4]
Peoples who have been colonised (occupied by another civilisation) enjoy a right to self-determination, but minorities who were not colonised do not have such a right. If any minority group could declare its independence at any time, the order of international law would collapse. This has, in fact, been Russia’s argument for its brutal repression of its own Chechen separatists. But in extreme circumstances, when a minority has faced extensive crimes against humanity and there is no other way to secure the safety, integrity and survival of the group concerned, they may claim independence. This is called remedial secession.
The Russian position on remedial secession is that it is an absolute last resort. In fact, its general position does not differ from most other States as well as various courts.[5] First of all, human rights should be upheld within the State. Failing that, a group may have a right to limited self-government or autonomy (i.e., some form of devolved administration), without, again, disrupting the external State borders. Ukraine agreed to limited self-government for the Luhansk and Donetsk Oblasts in 2015, further expanding their autonomy in 2018 and again in 2021. In reality, the two regions have been in a state of conflict since 2014, and Russian-backed and armed separatists are in de facto control. Only if there is no possibility to protect the group within the existing State is independence permitted.
In its submission to the International Court of Justice regarding the Declaration of Independence of Kosovo following years of extreme and systematic violations of the human rights of the Kosovars, including mass killings and forced relocations in an effort to remove them entirely from certain parts of Serbian territory, Russia stated as follows:
“There have, of course, been many unlawful acts of war since the UN Charter was signed in San Francisco on June 26th, 1945. We should protest them all. The present author marched through the streets of London in 2002 to protest the coming US-UK-led war on Iraq; and she stood in the town square in Akureyri in 2022 to protest the Russian war on Ukraine. There are victims of war in all parts of the world, and we must support them all.”
It is important to note that self-determination can be exercised within an existing State. This “internal self-determination” is in fact preferred in the post-colonial world.
[Remedial secession] can be exercised only in extreme conditions, where violent acts of discrimination are continuously committed against the people in question and all the possibilities for a resolution of the problem within the existing State have been exhausted…. [quoting the Quebec reference]: a right to external self-determination… arises only in the most extreme cases, and even then, under carefully defined circumstances.
Those conditions should be limited to truly extreme circumstances, such as an outright armed attack by the present State, threatening the very existence of the people in question.
To sum up, the situation [in Kosovo] does not even begin to come close to the “extreme circumstances” under which the right to secession may be invoked.[6]
Based on its own position on remedial secession, Russia has no basis on which to claim that these two Ukrainian oblasts are now independent States that are being subjected to ‘attack’ by Ukraine. And even if it did, that would justify interference to protect the two oblasts/States; not to occupy the entire country.
But what about?
There have, of course, been many unlawful acts of war since the UN Charter was signed in San Francisco on June 26th 1945. We should protest them all. The present author marched through the streets of London in 2002 to protest the coming US-UK-led war on Iraq; and she stood in the town square in Akureyri in 2022 to protest the Russian war on Ukraine. There are victims of war in all parts of the world, and we must support them all. Condemning Russia’s aggression does not mean we support the warmongering of others: how could it? Supporting Ukrainians (and, indeed, supporting Russian victims of a war they did not choose) does not mean we turn a blind eye to victims of war elsewhere. Calling for the sovereignty of Ukraine against its belligerent neighbour does not mean we stop untangling the doctrine of sovereignty in colonial situations (including of Indigenous Peoples) or that we are not concerned about any human rights violations that occurred or may occur in Ukraine or anywhere else.
The consequences for international law
Russia’s breach of the most fundamental principle of international law – the prohibition of the use of force – is so flagrant and its purported justifications so poor that it threatens not only Ukraine but the system by which our chaotic world is made a little less chaotic. There have long been concerns that a State might use the doctrine of humanitarian intervention as a cover for geopolitical ends; but none has done so quite so blatantly until now. The danger posed by Russia as a nuclear-weapon wielding State does not need restating. Russia’s veto prevents the United Nations Security Council from taking any effective action. It is inconceivable that Putin’s advisors and legal experts consider any of their arguments credible. Instead, the invasion of Ukraine signals that Russia is thumbing its nose at international law.
Today’s war in Ukraine is different. This is not a war of Russia v Ukraine, Russia v NATO or even Russia v ‘The West’. This is a war of Russia against the very foundations of international law.
Don’t turn the lights off yet
Is this the end of international law as we know it? The end of the United Nations? Not yet.
The overwhelming response of the international community condemning the invasion demonstrates that the vital signs of international law, although registering signs of shock, are still functioning. At the United Nations General Assembly, only Belarus, Eritrea, North Korea and Syria voted with Russia against the resolution, unambiguously titled ‘Aggression Against Ukraine’, demanding the immediate withdrawal of Russian forces from all of Ukraine’s territory.[7] With friends like these…
International law continues to govern this conflict for the better. The prosecutor of the International Criminal Court has already warned the Russian military that he is watching. Every Russian general in Ukraine right now must think twice before conducting any war crime, with the shadow of a long jail sentence awaiting those who breach egregiously the laws of war. The International Court of Justice will consider the application of Ukraine to decide if Russia has distorted the meaning of genocide, and it may first also order emergency preliminary measures requiring Russian to withdraw.[8] The UN Human Rights Council has established a Commission of Inquiry at Ukraine’s request.[9]
The Council of Europe has suspended Russia from political cooperation but Russia remains subject to the European Convention of Human Rights. The European Court of Human Rights has already granted urgent interim measures reminding Russia of its obligations to refrain from military attacks on civilian targets and ensure the safety of protected medical services.[10] The very making of the order indicates that the Court considers there is ‘an imminent risk of irreparable harm.’
The fight for international law is more important than ever
The States who seek to support Ukraine must also respect international law. They must ensure that sanctions are proportionate, do not target the human rights of innocent Russian civilians, and can be reversed as soon as Russia has withdrawn from Ukraine. Should other States become involved in military conflict, they must follow the laws of war, including the prohibition on attacking Russian civilian targets and protecting prisoners of war. They must treat refugees with dignity, not only those fleeing Ukraine but those coming from any war zone now and in future.
The Russian Federation itself continues to follow the formalities of international law, even as it violates the substance, maintaining its representation at the United Nations and submitting its letter to notify the Security Council of its use of force in purported self-defence. This demonstrates that even in these dark times, Russia retains a modicum of respect for the institutions of the international order.
The fight for international law is not over; instead, it has become more important than ever. ▢
References:
[1] Around 1/3 of Ukrainians speak Russian as a first language; but only around half of this group identify as Russian. There is no evidence that amongst the Russian-identifying Ukrainians that there is widespread support for the Russian invasion.
[2] On the Responsibility to Protect Doctrine, see Global Center for the Responsibility to Protect, https://www.globalr2p.org/what-is-r2p/.
[3] The Human Rights Committee’s concluding observations on the eighth periodic report
of Ukraine are available at: https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/UKR/CO/8&Lang=En . See also, Civic Space and Fundamental Freedoms in Ukraine, 1 November 2019-31 October 2021, Report of the Office of the High Commission of Human Rights (December 2021) examining, inter alia, constraints on freedom of expression and threats to human rights defenders in Ukraine, in government-controlled territory, in the armed group-controlled territory (Luhansk and Donetsk Oblasts) and in Russian-occupied territory (Crimea and Sevastopol); and Arbitrary Detention, Torture and ill-Treatment in the Context of Armed Conflict in Eastern Ukraine, 2014-2021, Report of the Office of the High Commission of Human Rights (November 2021) (indicating violations on both sides of the conflict, but also noting that: “From 2016, the prevalence of conflict-related arbitrary detention by Government actors substantially decreased. Since late 2016, OHCHR has not observed a continuation of the practice of holding conflict-related detainees long-term
in unofficial places of detention” (para 6) but that: “As of April 2021, arbitrary detention remained a daily
occurrence in territory controlled by self-proclaimed ‘republics’” (para 7). Both reports available at: https://www.ohchr.org/en/countries/enacaregion/pages/uareports.aspx.
[4] Letter dated 24 February 2022 from the Permanent Representative of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. S/2022/154.
[5] See, Katangese Peoples’ Congress v. Zaire, African Commission on Human and Peoples’ Rights, 1995, case 75/92; Reference re Secession of Quebec, [1998] 2 S.C.R. 217 (Canada); Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), International Court of Justice Reports 2010, 403.
[6] Written Statement of the Russian Federation to the International Court of Justice in respect of Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Request for Advisory Opinion), 16 April 2009, paras 85, 87, 88 and 103.
[7] Aggression Against Ukraine, UNGA Resolution A/ES-11/L.1, 3 March 2022.
[8] Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation), International Court of Justice, https://www.icj-cij.org/en/case/182 .
[9] Situation of Human Rights in Ukraine Stemming from the Russian Aggression, UN Human Rights Council Resolution A/HRC/49/L.1, 4 March 2022.
[10] Situation in Ukraine – Measures to be taken, including under Article 8 of the Statute of the Council of Europe, Council of Europe, Decision CM/Del/Dec(2022)1426ter/2.3, 25 February 2022; Ukraine v. Russia (X), Application no. 11055/22, Order for Urgent Interim Measures, 1 March 2022.
Rachael Lorna Johnstone is a Professor of Law at the University of Akureyri and at Ilisimatusarfik (the University of Greenland). Prof. Johnstone specialises in Polar law: the governance of the Arctic and the Antarctic under international and domestic law. She has published widely on the rights of Indigenous Peoples, international human rights law, governance of extractive industries in the Arctic, international environmental law, state responsibility and due diligence, and Arctic strategies. Her books include Regulation of Extractive Industries: Community Engagement in the Arctic (Routledge 2020) with Anne Merrild Hansen, Arctic Governance in a Changing World (Rowman and Littlefield 2019) with Mary Durfee, and Offshore Oil and Gas Development in the Arctic under International Law: Risk and Responsibility (Brill 2015).
She holds a doctorate in juridical science from the University of Toronto (2004), an M.A. in Polar Law from the University of Akureyri (2014), an LL.M. (magna cum laude) in Legal Theory from the European Academy of Legal Theory (2000) and an LL.B. (Hons) from the University of Glasgow (1999).
Prof. Johnstone is an active member of the International Law Association and two thematic networks of the University of the Arctic: on Arctic Law and on Sustainable Resources and Social Responsibility. She is a member of the board of the Icelandic Human Rights Center and the deputy member for Iceland on the Social and Human Working Group of the International Arctic Science Committee. Prof. Johnstone is also a member of the Arctic Circle Mission Council on Greenland in the Arctic and serves on the advisory board of the Polar Research and Policy Initiative, PRPI, a JONAA collaborating partner, that originally published this article on March 10th 2022 as, UKRAINE: WHY THIS WAR IS DIFFERENT
David Wright is a filmmaker and photographer, based in Maine. David apprenticed at Oxford Scientific Films in the UK and has spent time living in Australia and Svalbard before settling in the US. During a 30 year career in the television business, he has worked in over 65 countries with work shown on National Geographic Television, Apple + TV, Netflix and the BBC. Stories cover a wide range of subjects, but most are based around environmental or social justice issues and awards include two Emmys and a BAFTA. David’s website is www.expeditioncamera.com and on Instagram, he is under @david_wright_photo. David Wright is one of the founding members of JONAA.
This article is published in media cooperation between JONAA and the Polar Research and Policy Initiative, PRPI, and its platform, The Polar Connection.
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