Russia's Breach Of International Law: What And Why?

Russia's invasion of Ukraine in 2022 has been deemed a violation of international law, including the Charter of the United Nations. This act of aggression has been called a crime under international criminal law and some countries' domestic criminal codes. The invasion breached the fundamental principles of international law regarding the use of force and respect for territorial integrity. Russia's recognition of breakaway regions within Ukraine as sovereign states further challenged international law and set the stage for the invasion. The international community has widely condemned Russia's actions, and efforts are underway to hold Russia accountable for its violations.

Violation of the UN Charter

The invasion of Ukraine in 2022 saw Russia violate international law, including the United Nations (UN) Charter. As a member of the UN since 1991, Russia is bound by the 1945 UN Charter, which sets out the conditions under which member states can legally go to war.

The UN Charter, considered one of the most significant documents of international law, prohibits the use of force against the territorial integrity or political independence of any state. This is outlined in Article 2(4), which states that all members of the UN:

> "Shall refrain in their international relations from 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."

Article 2(3) of the UN Charter further requires member states to:

> "settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered."

The only exceptions to these principles, as per the UN Charter, are self-defence and an authorisation by the Security Council. Russia's invasion of Ukraine violated these principles, with many experts opining that it breached Article 2(4)'s prohibition on the "use of force" against other states.

Russia has argued that its use of force against Ukraine is lawful under Article 51 of the UN Charter, which allows for self-defence and collective self-defence against "an armed attack". Specifically, Russia claimed it was defending the Donetsk People's Republic and Luhansk People's Republic, which it recognises as independent states. However, this argument has been criticised by international law and foreign policy experts, who assert that Ukraine did not threaten or attack any other nation and that Donetsk and Luhansk are not recognised as separate states under international law.

The recognition of the Donetsk and Luhansk republics as sovereign states by Russia is a central aspect of the conflict. This recognition is considered a violation of international law, as these territories were created and sustained by illegal Russian military force, according to the rules outlined in the UN Charter, which became binding international law in 1945. The international lawyer and judge Hersch Lauterpacht described such recognition as "an international delinquency".

By recognising these territories, Russia denied Ukraine's sovereignty and set the stage for its invasion, cloaking its illegal behaviour in the language of international law. This recognition opened up new arguments for Russia, allowing it to invite Russian troops onto the territories under the guise of peacekeeping rather than invasion.

Violation of Ukraine's territorial integrity

Russia's invasion of Ukraine violated international law, including the Charter of the United Nations, and has been called a crime of aggression under international criminal law.

The invasion of Ukraine violated Ukraine's territorial integrity and political independence, which is protected by Article 2(4) of the UN Charter. This article provides that all members of the UN:

> [S]hall refrain in their international relations from 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.

Similarly, Article 2(3) of the Charter requires all member states to:

> [S]ettle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

The only two exceptions enshrined in the UN Charter are self-defence and an authorisation by the Security Council.

Self-Defence Justification

Russia has argued that its use of force against Ukraine is lawful under Article 51 of the UN Charter, which preserves the rights of UN member states to defend themselves against "an armed attack" and to engage in "collective self-defence". Specifically, Russia has claimed that it may use force against Ukraine to defend the Donetsk People's Republic and the Luhansk People's Republic, which Russia recognises as independent states. However, this argument has been criticised by international law and foreign policy experts. They argue that Russia cannot rely on a self-defence justification because Ukraine has not threatened or attacked any other nation. They also argue that even if Ukraine had been planning an attack against Donetsk or Luhansk, Russia could not invoke Article 51's collective self-defence provision because these regions are not recognised as separate states under international law.

Genocide/Humanitarian Intervention Justification

Experts have also rejected Russia's argument that its invasion is justified on humanitarian grounds to protect Russian speakers in the Donbas. Some commentators have questioned whether international law even allows nations to use force against another country to remedy genocide or human rights violations. The same goes for Russia's implicit reliance on the so-called protection of nationals doctrine, which only applies to situations of less intensity (like hostage-takings) and requires an actual threat, lack of cooperation by the government of the country where nationals are being threatened, and a minimum of force. In any event, Russia's humanitarian justifications for the invasion are widely perceived as a pretext and are unsubstantiated by any evidence.

War crimes and crimes against humanity

War crimes refer to violations of the laws and customs of war, which are codified in international treaties such as the Geneva Conventions and their Additional Protocols. War crimes can be committed by members of armed forces, paramilitary groups, or civilians. They include a wide range of acts, such as:

• Grave breaches of the Geneva Conventions, such as wilful killing, torture, or inhuman treatment
• Wilfully causing great suffering or serious injury to body or health
• Extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly
• Forcibly transferring a child from one group to another
• Using prohibited weapons or methods of warfare, such as chemical or biological weapons

Crimes against humanity, on the other hand, are defined by the Rome Statute of the International Criminal Court as:

> "...the most serious crimes of international concern [including murder, extermination, forcible transfer of population, imprisonment, torture, sexual violence, persecution, enforced disappearance and the crime of apartheid]...when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack."

Crimes against humanity have been alleged in Ukraine, with reports of indiscriminate attacks on civilians, use of prohibited weapons, torture, and enforced disappearances.

The International Criminal Court (ICC) has opened an investigation into alleged war crimes and crimes against humanity in Ukraine since 2013. The Court has jurisdiction over these crimes under the Rome Statute, which Russia is not a party to. However, Ukraine has accepted the ICC's jurisdiction, and 39 member states officially referred the matter to the Court. The ICC also set up an online portal for individuals with evidence to contact investigators and sent a team of investigators, lawyers, and other professionals to Ukraine to collect evidence.

Violation of the Helsinki Final Act

The Helsinki Final Act, also known as the Helsinki Accords or Helsinki Declaration, was signed at the closing meeting of the third phase of the Conference on Security and Co-operation in Europe (CSCE) in 1975. The Act was signed by all then-existing European countries except Andorra, Albania, and Hoxhaist Albania, as well as the United States and Canada, totalling 35 participating states.

The Helsinki Final Act was an attempt to improve relations between the East and the West, and it addressed a range of prominent global issues, including political, military, and economic matters, as well as human rights and freedoms. The Act was particularly significant because it included a commitment to respect the territorial integrity of states and to refrain from the threat or use of force.

Russia violated the Helsinki Final Act when it invaded Ukraine in 2022. This invasion broke the promise made in the Act to respect the territorial integrity of other signatory states and not to use force against them. By invading Ukraine, Russia also violated other international agreements and the UN Charter, which sets out the conditions under which UN member states can legally resort to war.

Violation of the Budapest Memorandum

The Budapest Memorandum, signed in 1994, was a pledge by the US, UK, and Russia to respect Ukraine's territorial integrity and sovereignty and to refrain from using military force or economic coercion against Ukraine. In exchange, Ukraine agreed to give up its nuclear arsenal, which was the third-largest in the world at the time, and join the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as a non-nuclear state.

Russia broke its pledge to respect Ukraine's sovereignty in 2014 when it annexed Crimea and committed acts of aggression in eastern Ukraine. This was a violation of the Budapest Memorandum and a breach of international law. The international response at the time was muted, although the US and UK did take steps to strengthen Ukraine's armed forces through training and the provision of lethal defensive arms.

The Russian invasion of Ukraine in 2022 is an even more serious violation of the Budapest Memorandum. It also raises the spectre of a nuclear war, as Russia has put its nuclear deterrence forces on high alert. The US and UK have provided Ukraine with financing, military equipment, and training, but they have ruled out direct intervention, such as imposing no-fly zones over Ukraine, for fear of being drawn into a war with Russia.

The violation of the Budapest Memorandum has far-reaching consequences for nuclear non-proliferation and disarmament. It undermines the credibility of major power security assurances, which have been used to dissuade countries such as Belarus, Kazakhstan, and Ukraine from possessing nuclear weapons. The invasion of Ukraine may lead other states to question the reliability of such assurances and instead pursue nuclear weapons to safeguard their sovereignty and independence.

The Budapest Memorandum is not legally binding, but it does provide a set of political assurances that are intended to be respected by the signatory states. The violation of these assurances by Russia has left Ukraine feeling betrayed and struggling to fend for itself against an unlawful, nuclear-capable aggressor.

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