What about International Law?
By Garth L le Pere
What began as a “special military operation” by Vladimir Putin on 24 February 2022 has now, one year later, evolved into a full-blown and destructive war between Russia and Ukraine where established norms of international law have been observed more in the breach.
The spurious rationale of Putin’s operation was ostensibly to “denazify” and “demilitarise” Ukraine but the real sub-text of his geo-political impulses was to ensure that Ukraine did not spin off into the Western orbit by joining the European Union (EU). However, of greater concern was its putative membership of the North Atlantic Treaty Organisation (NATO), even though Ukraine hardly had the necessary credentials to meet the onerous criteria of NATO membership.
The outbreak of the war and its unsettling and violent aftermath one year later have been coterminous with and indeed, have exacerbated a very turbulent, uncertain, and volatile period in international relations.
The apocalyptic havoc caused by the COVID pandemic across the globe has been compounded by rising military tensions; the spread of asymmetric threats and terrorism; disruptive trade and commercial relations; rising protectionism and right-wing populism in the West; insidious environmental degradation; increasing food insecurity and famine among developing countries; hard and soft forms of cyber warfare; sovereign debt and financial crises; the proliferation of weapons of mass destruction; and deepening atavistic bigotry and racism in Europe and the United States.
These features of a troubled world are symptomatic of an increasing antipathy towards the Post-Cold War international order where the primacy of American power held sway. The idealism of globalisation and optimism of interdependence that brought societies, countries, and regions together as “communities of fate” have rather been replaced by a dark and ominous zeitgeist of geo-political tensions and conflicts, of which the Russia-Ukraine war is a profound expression.
Indeed, Putin’s anti-Western temperament and paranoia have their roots in NATO’s dramatic eastward expansion which absorbed former Soviet satellites in his near abroad and close to Russia’s border.
Consider that in 2004 alone, NATO added seven new members, namely, Bulgaria, Estonia, Latvia, Lithuania, Romania, Slovakia, and Slovenia. This was followed by incorporating Albania and Croatia in 2009, Montenegro in 2017, and North Macedonia in 2020, thereby bringing the current NATO membership to 30 since its founding in 1949.
This eastward expansion gave NATO and the United States a new legitimising logic as a trans-Atlantic military and security alliance which the Soviet-era Warsaw Pact with its eight members had lost after the Pact’s dissolution and rapid demise in July 1991.
Putin’s sense of insecurity and encirclement by NATO became more pronounced after Ukraine abandoned the disintegrating Soviet orbit of 15 former republics in 1991 but the ostensible protection of eight million ethnic Russians in the south and east of Ukraine provided a ready justification for Russia’s annexation of Crimea and its assault on the Donbas region in 2014 which was a prelude to the ravages of this war.
It was thus NATO’s eastward expansion and its holier-than-thou hypocrisy of “containing” the Kremlin which have been critical variables in Putin’s obsession with preventing Ukraine from inexorably slipping into the Western sphere of influence.
And so, the world is now caught in an uneasy vortex of crises and division, characterised by a range of morbid symptoms that have become the hallmarks of global disorder and geo-political rifts, such that a judicious end to the war is not yet in sight. Some ready points of reference in the recent months include:
- President Joe Biden’s unprecedented visit to Ukraine’s capital, Kyiv, in an active war zone where his security could only be guaranteed by Ukraine’s military and intelligence services;
- China’s top diplomat, Wang Yi, going to Moscow to affirm China’s relationship with Russia as one “without limits” and “red lines” but yet seeking to play an active mediating role in bringing an end to the war;
- Russian Foreign Minister Sergey Lavrov meeting his South African counterpart Naledi Pandor during an official visit to strengthen bilateral ties yet the symbolism was not lost in demonstrating that Russia was not as isolated as the Western narrative would have it;
- heightened tensions between the US and China after a high-altitude surveillance balloon from China was shot down by the US government over the Atlantic Ocean;
- South Africa participating in naval exercises with Russia and China off the Kwa-Zulu coast during the one-year anniversary of the war in Ukraine which was frowned upon by the European Union and the United States as being insensitive; and
- a UN General Assembly Resolution supported by 141 members which demanded that Russia withdraw its troops from Ukraine and end the war (32 countries abstained including South Africa, the fifth such abstention).
These referents are useful insofar as they cast the spotlight on how shaky the foundations of stable and cooperative international relations have become as a consequence of the war.
These include undermining multilateralism in dealing with the high politics of war and peace, and crucially, the erosion of rule-based justifications and behaviour which have been constructed around a wide normative and principled consensus regarding respect for international law, the prudential use of military force, and the just conduct of war.
The Multilateral Imperative and International Law
It is now incontrovertible that without multilateral cooperation and adherence to international law, it is doubtful whether global responses can be mounted to develop a calculus that will satisfy the interests of the protagonists in how the war could be ended.
Efforts cannot be ignored in this regard such as the bold proposal by Brazilian President Luiz Inácio Lula da Silva to bring together a group of like-minded countries to discuss ways of ending the war with both Russia and Ukraine.
This proposal follows a bilateral meeting with German Chancellor Olaf Scholz in Brasilia on 30 January 2023. To compound matters on how to bring the war to an end, the authority and jurisdiction of the five permanent members of the UN Security Council have failed to develop the necessary cooperative and collaborative linkages that would unite the international community behind a common agenda of seeking a peaceful resolution to the war.
Of course, any redress in this regard would be complicated by the presence of Russia and its main ally, China, who are permanent members of the Council.
As a result, there is even more of a disincentive for protagonists to cooperate in a static and lethargic multilateral status quo where the basic precepts of international law tend to be violated with impunity, as has now become evident in this war.
In this regard and in a normative sense, we should not ignore the importance of international law, together with its principles and canons as critical “doctrines of sources” in embracing and upholding multilateral imperatives of promoting cooperation and recognising the role of international organisations such as the United Nations in doing so.
This matter takes on added relevance in how the Russia-Ukraine war has been conducted when examined against the legal principles of jus ad bellum and jus in bello.
Grounded in the vocabulary of the UN Charter of 1945, jus ad bellum refers to the use of force by states, the conditions under which they may resort to war, and the right to engage in war; while jus in bello is concerned with the use of force in war, how the conduct of warring parties could be regulated, and consequently, ensuring that appropriate steps are taken to minimise human suffering in armed conflict.
Russia’s aggressive military incursion in Ukraine and the emerging body of evidence concerning its conduct can be judged and assessed by its failure to heed, observe, and follow several of the following constituent elements and injunctions of jus ad bello, namely, that:
- the cause of war must be just and must be in response to a real and present threat of aggression;
- the right authority must make the decision to go to war; these can be states but can also be the collective will of citizens;
- whoever goes to war, must do so with the right intention; wrong intentions include those based on revenge, domination, human suffering, and personal or national interest;
- war must only be undertaken as a last resort; after negotiation, mediation, and diplomacy have failed;
- the goal or end product of war must be to guarantee the prospects of a lasting peace between the belligerents; and
- the war must be proportionate, that is, the harm caused by the war cannot outweigh any good that comes from it and consequently, dislocation, human suffering, death, and wanton destruction of strategic infrastructure must be avoided.
When it comes to jus in bello, besides including the final element of proportionality above, there are two important considerations:
- discrimination: this entails discriminating between legitimate and non-legitimate targets of war such as children, the sick and elderly, women, and residential dwellings and thereby, ensuring non-combatant immunity and security; and
- the double effect: the conduct of the war must avoid collateral damage in specific acts of war and as such, the consequences of such acts must be anticipated.
The Toll of the War: Human Suffering and Destruction
This reading and audit of the essential tenets of the conduct of war are indicative of the extent to which Russia has violated their prescriptive moral and ethical edicts which guard against any form of territorial invasion, occupation, and subsequent acquisition by force. Consider several examples which are germane to widespread violations of the letter and spirit of jus ad bello and jus in bellum:
- Now past its one year anniversary of 24 February 2023, Putin launched the war as a “special military operation” and on the spurious grounds of pursuing the “denazification” and “demilitarization” of Ukraine: a country that had taken difficult but substantial strides towards a democratic transition, especially under its President Volodymyr Zelenskyy, who has a Jewish background; while in terms of the Budapest Memorandum of 1994, Kyiv had agreed either to destroy its nuclear arsenal or move it to Russian territory.
- Thus far Russia controls and/or occupies 20 per cent of Ukraine’s territory by force, including Crimea and parts of the Donbas region seized in 2014.
- The war has taken a heavy toll on an already traumatised population of 44 million, leaving 6.5 million internally displaced, and 6 million fleeing the country. In addition, there have been forced deportations of thousands of civilians to Russia, especially from the city of Mariupol.
- As of February 2023, and as reported by the UN Office of the High Commissioner for Human Rights (OHCHR) the war has caused the deaths of more than 8000 civilians and left more than 13000 severely injured. The Russian army’s violence against civilians tends to be indiscriminate such as the missile attack on a train station in Kramatorsk in east Ukraine which killed 52 people including five children but there is also the systematic and massive use of sexual violence as a weapon of war with 124 alleged acts reported by the OHCHR in every region that Russian forces occupied.
- According to Ukraine’s former Prosecutor General, Iryna Venediktova, 15 000 alleged war crimes have been committed on both sides of the war. However, those committed by the Russian army stand out, including the use of cluster munitions which pose a direct threat to civilians such as air-dropped bombs, missiles, heavy artillery shells, and multiple launch rockets.
- The town of Bucha near Kyiv has become synonymous with Russian war crimes and atrocities when in April 2022, hundreds of civilian bodies were found in mass graves after a long siege by Russian troops, made worse by the recent discovery there of seven bodies in a grave with their hands and legs tied, “with a bullet to the head” according to Andriy Nebytov, the Kyiv regional police chief.
- Besides towns and villages being destroyed and laid waste in the path of the Russian army’s advance, major cities such as Mariupol, Kharkov, Bucha, Izum, Volnovakha, Sumy, Chernihiv, and Kherson or parts of them have been reduced to rubble because of the relentless bombardment by Russian artillery.
- At last count, more than 300 cultural and heritage sites of great historical and contemporary significance have either been severely damaged or totally destroyed according to and as verified by the UN Educational, Scientific, and Cultural Organization (UNESCO). These include museums, churches and religious buildings, public libraries, cemeteries, memorials, and monuments; and thus far, almost 2000 schools have suffered the same fate according to Ukraine’s Ministry of Education and Science.
- Reminiscent of the Holodomor (genocide by hunger) of the 1930s when Joseph Stalin’s Soviet regime inflicted a devastating famine on Ukraine which resulted in 4 million deaths, Putin’s army has laid farmland to waste, destroyed agricultural equipment, blocked circuits, and outlets of food distribution, and have made it difficult to set up humanitarian corridors to assist affected civilians with food, shelter, and medicine.
All these examples are useful for coming to grips with their relational relevance to the destructive and wide-ranging effects of Russia-Ukraine war.
Of particular significance is the Kremlin’s proclivity to act in a contrarian fashion to the notion that the disciplinary requirements and demands of war and peace ineluctably pushes all states to become “like units” in terms of their multilateral obligations, especially regarding adherence to the principles of international law, and membership in intergovernmental organisations.
Acting and behaving in the letter and spirit of “like units” is supposed to promote and shape a common world view among a very divergent and diverse universe of units because of their sheer survival imperative in an anarchic universe of states; and where the threat and spectre of war and especially forms of nuclear Armageddon loom large and are omnipresent.
As the war drags onto its second year, any reprieve seems quite distant while in the currently tense and divisive geo-political environment, its conclusion is difficult to discern since as Winston Churchill once said: “there are no certainties in war”.
Nevertheless, moral duty among the protagonists must hold absolutely, especially as defined by the precepts of jus ad bello and jus in bellum. In the final analysis, a commitment to overarching universal justice must prevail since human capacity for compassion is the key to global solidarity and to addressing human vulnerability.
Dr Garth le Pere is Visiting Professor at the University of Pretoria and writes in his own capacity.