by Gareth Hughes.
Gareth Hughes is a final year Business and Law student in UCD. In this article he critically assesses the approach adopted by the major Western powers to the use of force in international law. He discusses the potential justifications which Russia can draw from this approach regarding their invasion of Ukraine.
Russia’s recent military invasion of Ukraine has received widespread condemnation for its violation of the prohibition on the threat or use of force under Article 2(4) of the UN Charter. However, in justifying its actions, Russia may well look to the ‘rule-breaking precedents’ set by its fellow permanent Security Council members.[1] Previous actions by the US, UK and France have all served to weaken the credibility of the current approach to the use of force in international law. Only by choosing to address the lack of ‘consistency’ and ‘accountability’ in their own approaches will these key actors be able to hold Russia to account without the creation of an unjustifiable double standard.[2]
‘The Well-known Kosovo Precedent’
The dangers associated with the selective application of the prohibition on the use of force can be seen in the fallout of NATO’s 1999 air campaign against the Federal Republic of Yugoslavia (FRY). First, however, it is important to understand the ban on the use of force and its explicit exceptions. The prohibition on the use of force can be found in Article 2(4) of the Charter which forbids ‘the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’[3] Two exceptions to this prohibition exist within the Charter. States may use force in self-defence under Article 51 or the use of force may be authorised by the United Nations Security Council under Chapter VII.
It seems clear therefore that no use of military force is permitted, save in a case of self-defence, unless authorised by the Security Council. This can lead to issues of stagnation and inaction where one of the five permanent members of the Security Council utilises their veto power to prevent such authorisation from occurring. This is evident from the case of Kosovo in 1999, where China and Russia were poised to veto any attempt at achieving UN intervention in the region.[4] Faced with this predicament, NATO opted to circumvent the prohibition and engage in an air campaign against the FRY without the express permission of the Security Council in an act of ‘unilateral humanitarian intervention’.[5] Without a clear legal justification, NATO based its actions on arguments of morality.[6] The subjectivity of morality and the ‘divergence’ of moral values among states render such justifications highly questionable and potentially dangerous.[7]
Western states scrambled to recognise Kosovo following its declaration of independence, with the UK being ‘first off the block’. This international recognition would appear at the very least to be an implicit recognition of the fact that Kosovo has successfully implemented remedial secession in international law.[8] Remedial secession is described by Hilpold as the right of secession which is granted to a minority or a people ‘in extreme cases of oppression and discrimination.’[9] Therefore, from an outside perspective, this conflict looks as though the US, UK and France, through their membership of NATO, engaged in illegal use of force based on arguments of morality which supported the secession of an oppressed minority group in disregard of the territorial integrity of another state.
Could Russia not then engage in military action in Ukraine to free the oppressed ethnic-Russian minority, justified on grounds of morality and the self-determination of a people? O’Connell notes that the Russian minority in Ukraine could certainly call for such humanitarian intervention along the lines of that provided to the Kosovar Albanians given the ‘violence and discrimination’ suffered by both groups at the hands of their respective majorities.[10] Indeed, Putin has pointed to Crimean authorities citing ‘the well-known Kosovo precedent’ during their attempt at secession.[11] Excluding Russia from ever engaging in such justifications could give rise to an idea of ‘exceptional legality’ with the Western P5 members seeking one rule for themselves and another for their eastern counterparts.[12] Such exceptionalism towards the use of force by Western states will only strengthen notions of ‘Western hypocrisy’ and further undermine Article 2(4).[13]
American Anticipation
Article 51 of the UN Charter, as an exception to the general prohibition on the use of force, provides states with a right to self-defence in response to an ‘armed attack’ against them or another member of the United Nations. Some states and scholars have also supported a concept of ‘anticipatory self-defence’ allowing for force to be used in anticipation of an impending attack, despite no express authority for this in Article 51.[14] However, a more extensive interpretation of self-defence which would permit states to engage in military action based on ‘distant threats’ is all but unanimously rejected.[15] Despite this rejection, the US has sought to apply the prohibition on the use of force selectively in its own case and engage in self-defence against such distant threats.[16]
Following the September 11 attacks, the US sought to redefine the very notion of an ‘imminent threat’ to allow for ‘preventive wars’ fought against ‘vaguely defined threats’[17] In altering the definition of what constitutes an ‘imminent threat’ to justify the use of military drones, the US abandoned the requirements of ‘immediacy’ and ‘certainty’.[18] The National Security Strategy which was adopted by the Bush Administration justified the use of force in self-defence even in the face of uncertainty surrounding the location and time of a future enemy attack.[19] In this manner, the US has adopted an approach more akin to ‘preventive’ self-defence as opposed to the more traditional ‘anticipatory’ approach.[20] Preventive self-defence goes even further and can be understood as the ‘use of force by a state to prevent another state from pursuing a threat which is not imminent and more remote in time.’[21] When invading Iraq in 2003 without express Security Council authorisation, the US justified this excursion through an interpretive reading of previous Security Council resolutions.[22] However, the true pretext for such an invasion could well be viewed as an example of preventive self-defence in the face of supposed Weapons of Mass Destruction.[23]
International law is constructed on the foundation of ‘reciprocity’ and the belief that all states are equal.[24] In this light, the actions of the US could be viewed as the creation of new international custom with regard to the use of force in self-defence which would in turn allow all other states, including Russia, to adopt similar approaches in their security policies.[25] There is a clear danger present here that this doctrine could be abused by powerful states to take action against weaker counterparts in the face of undefined threats. On the other hand, trying to limit this defence only to the major Western powers could undermine this principle of reciprocity and would serve as a great insult to the power of Russia.[26] In either case, it would be quite difficult to argue that this right to preventive self-defence is not simply ‘imperial power masquerading as law.’[27]
Utilising this right, Russia could potentially seek to justify an invasion of Ukraine without authorisation on the presumption of the presence of dangerous weapons which threaten Russian safety, similar to the US justification in 2003. The formulation of such an argument can be identified in Russia’s recent announcements before the Security Council.[28]This possibility remains due to the willingness of the US and its allies to seemingly opt out of the UN Charter’s prohibition on force as they please – if Western powers are unwilling to maintain fidelity to the Charter they cannot expect Russia to do.
Unified Protectors or Rule Breakers?
The veto of permanent Security Council members can quickly block any attempts at providing assistance in a conflict where humanitarian intervention is needed. Russia and China utilised their veto power to prevent military action aimed at ending the genocide of Kosovar Albanians.[29] France and the US vetoed actions in response to the Rwandan genocide in 1994.[30] The development of the ‘responsibility to protect’ principle sought to allow or compel states to engage in international action where another state fails to protect its own civilians from grave human rights abuses.[31] The UN would maintain its power over authorisation of the use of force but this principle was a useful tool for ‘refocusing’ the Security Council onto issues of humanitarian concern.[32]
In March 2011, the Security Council adopted Resolution 1973 which granted permission for states to use force against Libya on humanitarian grounds.[33] This was the first practical application of ‘responsibility to protect’ being used to authorise military force against an unwilling state for its failure to protect its own citizens.[34] Resolution 1973 allowed for the use of force to protect both civilians and civilian areas which were under the threat of attack from Qaddafi’s forces.[35] However, during Operation Unified Protector, a sense of mission-creep set in.[36] NATO moved away from solely protecting civilians and more towards the aim of removing Qaddafi from power.[37] A joint declaration from the leaders of the US, UK and France held that they saw no sustainable future for Libya with Qaddafi in power.[38] France secretly shipped arms to the rebels while NATO forces coordinated airstrikes against rebel targets.[39] These targets were areas held by Qaddafi so the civilians within were under little threat from his forces and it was the rebels who posed more of a risk to civilian life.[40] NATO continued to provide aid to the rebels despite the fact that they were rejecting offers of a cease-fire from Qaddafi.[41] These actions all appear to be a clear breach of Resolution 1973 and constitute a breach of Article 2(4) as a result.[42]
Beyond the loss of life which resulted from this conflict, the actions of NATO are troubling for two reasons. Firstly, their disregard for the mandate set out by the Security Council weakens the principle of ‘responsibility to protect’ and has raised suspicions among other states, Russia included, as to whether such a neglection of orders will occur again, such as in the case of Syria.[43] Moreover, it will be much more difficult for western powers to argue that Russia is exploiting its veto over humanitarian issues in future, when the last time Russia allowed for such intervention to occur, other permanent Council members abused their powers. If Russia does allow for intervention under the ‘responsibility to protect’ principle to take place in the future, it will be equally as difficult for the US, UK and France to hold Russia accountable to mandates set by the Council. Once again, Western powers must accept the equal application of International law if they are to avoid allegations of engaging in contemporary imperialism.
Conclusion
The prohibition on the use of force is not just an aspect of the UN Charter but is the ‘fundamental premise’ on which the entire Charter rests.[44] By continuing to engage in uses of force which are not explicitly recognised in the Charter, or by overstepping the powers granted to them under the Charter, the US, UK and France provide Russia with ammunition to engage in ‘whataboutism’ and distract from its flagrant disobedience. Only by taking accountability for past actions and recommitting to the purposes of the UN Charter will other UN members be empowered to hold Russia to account for current and future atrocities. By perpetuating the status quo – condemning Russia for flouting norms they frequently flout themselves – the Western powers greatly undermine the integrity of the UN system and the wider framework of international law.
[1] Ben Saul, ‘Western hypocrisy over the Russian invasion of Ukraine’ (2022) 444 Australian Book Review 9, 10.
[2] Ibid 11.
[3] Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 2(4).
[4] Richard Falk, ‘Kosovo, world order, and the future of international law’ (1999) 93(4) American Journal of International Law 847, 850.
[5] Anthea Roberts, ‘Legality v Legitimacy: Can Uses of Force be illegal but justified?’ in Philip Alston and Euan MacDonald (eds), Human Rights, Intervention and the Use of Force (OUP, 2008) 180, 181.
[6] Ibid 202.
[7] Ibid.
[8] Branislav Randeljic, ‘Official Discrepancies: Kosovo Independence and Western European Rhetoric’ (2014) 15(4) Perspectives on European Politics and Society 431, 437.
[9] Peter Hilpold, ‘Self-Determination and Autonomy: Between Secession and Internal Self-Determination’ (2017) 24(3) International Journal on Minority and Group Rights 302,322.
[10] Mary O’Connell, ‘The Crisis in Ukraine 2014-‘ in Olivier Corten and Tom Ruys (eds) International Law and the Use of Force: A Case-Based Approach (OUP, 2017) https://ssrn.com/abstract=2990658 [accessed 11/12/2022].
[11] ‘Address by the President of the Russian Federation’ (18 March 2014) http://en.kremlin.ru/events/president/news/20603, cited in Majid Nikouei and Masoud Zamani, ‘The Secession of Crimea: Where Does International Law Stand?’ (2016) 85 Nordic Journal of International Law 37, 54.
[12] Michael Byers and Simon Chesterman, ‘Changing the rules about rules?: Unilateral humanitarian intervention and the future of international law’ in J.L. Holzgrefe and Robert Keohane (eds) Humanitarian Intervention: Ethical, Legal and Political Dilemmas (CUP, 2003) 177 at 195-198 cited in Anthea Roberts, ‘Legality v Legitimacy: Can Uses of Force be illegal but justified?’ in Philip Alston and Euan MacDonald (eds), Human Rights, Intervention and the Use of Force (OUP, 2008) 180, 181.
[13] Saul (n 1) 10.
[14] Tamás Hoffman, ‘War or Peace? – International Legal Issues concerning the Use of Force in the Russia-Ukraine Conflict’ (2022) 63(3) Hungarian Journal of Legal Studies (forthcoming). https://ssrn.com/abstract=4216989 [accessed 12/12/2022].
[15] Ibid.
[16] Noura Erakat, ‘New Imminence in the Time of Obama: The Impact of Targeted Killings on the Law of Self-Defence’ (2014) 56(1) Arizona Law Review 195.
[17] Vasja Badalic, ‘The war against vague threats: the redefinitions of imminent threat and anticipatory use of force’ (2021) 52(2) Security Dialogue 174,176.
[18] Ibid 178.
[19] Erakat (n 19) 207.
[20] Miriam Sapiro, ‘Iraq: The Shifting Sands of Pre-emptive Self-Defence’ (2003) 97(3) The American Journal of International Law 599.
[21] Abdul Ghafur Hamid, ‘THE LEGALITY OF ANTICIPATORY SELF-DEFENCE IN THE 21ST CENTURY WORLD ORDER: A RE-APPRAISAL’ (2007) 54(3) Netherlands International Law Review 441, 445.
[22] Ibid 479.
[23] Erakat (n 19) 218.
[24] Ibid 235.
[25] Ibid.
[26] Ibid.
[27] Saul (n 1) 11.
[28] Tamás Hoffman (n 17).
[29] n 4.
[30] Jan Wouters and Tom Ruys, ‘Security Council Reform: A New Veto for a New Century’ (2005) 44 Military Law and Law of War Review 139, 151.
[31] James Crawford, Brownlie’s Principles of Public International Law, (9th edn, Oxford University Press, 2019) 731.
[32] Ibid 729-731.
[33] Rachel Van Landingham, ‘The Stars Aligned: The Legality, Legitimacy and Legacy of 2011’s Humanitarian Intervention in Libya’ (2012) 46(3) Valparaiso University Law Review 859.
[34] Geir Ulfstein and Hege Fosund Christiansen, ‘The legality of the NATO bombing in Libya’ (2013) 62(1) International and Comparative Law Quarterly 159, 161.
[35] Ibid 161.
[36] Ulfstein and Christiansen (n 37) 890.
[37] Alan Kuperman, ‘A Model Humanitarian Intervention?: Reassessing NATO’s Libya Campaign’ (2013) 38(1) International Security 105, 113.
[38] Ulfstein and Christiansen (n 37) 165-166.
[39] Ibid 168.
[40] Ibid.
[41] Kuperman (n 40) 115.
[42] Ulfstein and Christiansen (n 37) 169.
[43] Ibid 170.
[44] Rachel Van Landingham, ‘The Stars Aligned: The Legality, Legitimacy and Legacy of 2011’s Humanitarian Intervention in Libya’ (2012) 46(3) Valparaiso University Law Review 859, 870.
UCD Law Review 