Russia and the Ukraine: Violations and justifications

10^th March 2014

Mike Hoffman discusses the growing conflict between Russia and the Ukraine from an international law perspective

The highest codification of International Law, The UN Charter, expressly states in Article 2(4) that the threat or use of force against the territorial integrity or political independence of another state is unlawful. The only use of force allowable for an independent state under the UN Charter, as outlined in Article 51, are actions taken in self-defense; even then, a state must immediately report these actions to the Security Council, and obtain its approval for such actions. In simple terms, regardless of almost any mitigating circumstances, you cannot wantonly invade another country. Not only is this UN Charter law, but it is also Customary Law, and Jus Cogens (an inherent law of nature), the highest status of a law’s existence. The “threat or use of force” is, admittedly, an ambiguous phrase. However, actions such as mobilizing 25,000 troops into the borders of a sovereign nation, surrounding its military bases, blockading its naval vessels, demanding the surrender and defection of its armed forces, and initiating a military occupation of its territory while threatening to inject troops further into Ukraine are not ambiguous; they are, unequivocally, the unlawful use of force.

Putin has not only grossly violated the UN charter, but has also violated the guiding principles the Russian Federation committed to as a signatory of the Helsinki Final Act, including the provisions on refraining from the threat or use of force, respect for the territorial integrity of states, and non-intervention in internal affairs. Further, the Budapest Memorandum of 1994, signed by the US, UK, Russia, and Ukraine, specifically stated that in return for Ukraine’s cooperation in eliminating its Nuclear Weapons stockpile, and becoming a signatory to the NPT (all of which Ukraine has done), the US, UK, and Russia would agree to never threaten or use force against the territorial integrity and political independence of Ukraine, never use economic coercion to subjugate its government to their will, and refrain from any act that could be construed as military occupation in Ukrainian territory. All sides also agreed that if any of these actions occurred, they would be manifestly illegal. Russia has taken these actions, and therefore, they are illegal.

Arguments have been made by the Russian Federation, on many fronts, to justify military intervention, yet two are the most glaring. The first is the supposed protection of human rights in regards to Ethnic Russians in Crimea. Putin claims the minority group faced a clear and present danger, and he was forced to intervene. However, not one foreign government, independent journalist, human rights organization, NGO, or the UN has corroborated the claim that the Ethnic Russian population was in danger. The Russian Government refuses to allow independent observers from the OCSE enter the Crimean Region, and the UN Special Envoy, Robert Serry, sent to investigate the claims of HR abuses in Simferopol, was forced to leave the country only hours after arrival in response to an armed group threatening his life at gunpoint. If President Putin is so concerned with the supposed grave situation facing Ethnic Russians, why not allow the international community access to corroborate his story? There were no reports of government sponsored violence against the Ethnic Russian population, and the population itself, as well as Russian language and culture, is explicitly protected within the Ukrainian constitution under articles 10, 11, and 35.

President Putin’s second claim is simple: the Russians were invited to disregard the territorial integrity and respect for the internal affairs of a sovereign nation by Ukraine’s “legitimate leader”, Viktor Yanukovych. Putin’s argument over legality is this respect is not wrong. Military intervention by invitation is not necessarily considered the optimal method of quelling unrest; however, it is generally recognized as legal under international law. The leader of a sovereign nation can invite outside forces into their own country at their own discretion. The issue in this justification is the Russian insistence that Yanukovych is the legitimate leader. Simply put, he is not. The Ukrainian Parliament (Rada) under articles 85 (10), 103, 108, and 111, have the power to remove the acting President from office in the event he is accused of treason or “other crimes.” The Rada had the necessary simple majority needed to bring about the investigation, the 2/3 majority needed to bring charges, and the ¾ majority needed to effectively remove Yanukovych from office. They also approved a new government, and set emergency elections for May 25th, well within the 90 day period obligated under the constitution. With the power of the Ukrainian constitution on their side, the Rada effectively, and legally, removed Yanukovych from office and approved a legitimate government. Therefore, Viktor Yanukovych does not have the power to invite Russian forces into Ukrainian Territory, which fells Putin’s claim to intervention by invitation.

As the days pass, and the Russian Government’s justifications for military occupation in Crimea become ever more bizarre, international law continues to be flagrantly violated. The implications of these actions are very real, and have the capacity to not only destabilize the region, but to undermine the international laws on the use of force as they are currently understood. The international community must compel the Russian Federation’s withdrawal from Crimea. The influence of the West, the security of the region, and the territorial integrity of states now face a crisis that has the potential to shift the fundamental balance of power in the world, and create a much more dangerous environment for sovereign nations. President Putin, while discussing a possible military intervention in Syria, had a brilliant thought on the international system that is applicable to this very crisis: the law is still the law, and without that law, the world, already complex and turbulent, threatens to slide into chaos.