Ukraine: Legal or Illegal?

Why are assertions unbacked and why is the untested ambiguity unaddressed?

This article serves to illustrate some of the potential complexities that underlie the question of whether Russia’s invasion of Ukraine is either legal or illegal. It is not intended to be definitive and/or fully accurate. Rather, it is a think piece for the layman.

On February 28th, 2022 John B. Bellinger III published his opinion of “How Russia’s Invasion of Ukraine Violates International Law” via the Council for Foreign Relations. Précis:

Russia’s invasion of Ukraine violates Article 2(4) of the UN Charter that requires UN member states to refrain from the “use of force against the territorial integrity or political independence of any state.”

Suggestion that Russia’s use of force is justified under Article 51 of the UN Charter has no support in fact or law. Article 51 provides that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.”

Ukraine did not commit or threaten to commit an armed attack against Russia or any other UN member state.

Article 51 would not permit an action in collective self-defense, because Donetsk and Luhansk are not UN member states. Indeed, they do not even qualify as states under international law, despite their purported secession from Ukraine and Russia’s recognition of them as independent.

Claims that Ukraine was committing “genocide” against Russians in Donetsk and Luhansk are also not supported by the facts and would not give Russia a right to launch an invasion of Ukraine.

The Genocide Convention defines genocide as certain, specified actions intended to destroy in whole or in part a national, ethnic, racial, or religious group.

There is no evidence that Ukraine engaged in any of the defined actions and certainly no evidence of an intent to destroy in whole or in part any group in eastern Ukraine.

If the Ukrainian government had committed human rights abuses against Russians in eastern Ukraine, neither the Genocide Convention nor the UN Charter authorizes convention parties or UN member states to use force to remedy acts of genocide or serious human rights abuses.

In general, international law requires respect for the territorial integrity of states and does not permit regions of states to declare independence and secede. Some international law experts believe that so-called remedial secession is permissible as a last resort when a people have suffered grave human rights abuses at the hands of the state government and have been unable to exercise internal self-determination, but this is a minority view and few (if any) lawyers are likely to argue that secession by Donetsk and Luhansk was justified in this case.

Set aside, for a moment, that the above regarding Ukraine has yet to be tested in any form of legal case in any court, irrespective of whether a judgement could be enforced against Russia.

This piece is written in a way that implies near certainty of the author’s opinion. It also fails to refer the reader to tests of the assertions made and examples that support or contradict it. It also deliberately minimises the view that the way in which Donetsk and Luhansk seceded was justified.

One might be forgiven for believing, on the basis of this CFR piece alone, that Russia is slap bang in the wrong when in actual fact, it may only be “wrong” in the opinion of Bellinger when he frames it in this particular way.

UN Charter Article 2(4)

All Members 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.

Bellinger pointedly asserts that Article 2(4) fundamentally rules out the state use of force against another state inconsistent with the Purposes of the UN, which comprise:

1. Article 1 (2) - Equal rights and self-determination of peoples

2. Article 2 (4) - Prohibition of threat or use of force in international relations

3. Article 2 (5) - Obligation to give assistance to the United Nations and refrain from assisting States targeted with preventive or enforcement action

4. Article 2 (6) - Need to ensure that non-United Nations Members act in accordance with its Principles

5. Article 2 (7) - Non-intervention in domestic affairs by the United Nations

Bellinger makes no reference to any case in which Article 2(4) has been circumvented, excepted or contravened without consequence, despite such cases existing, irrespective of who or what was involved.

The above links lead to UN records that discuss examples of how UN Articles have been applied (or not) and some of the considerations involved. What can be understood quickly is that Article 2(4) is not obeyed to this day. The “Repertoire of the Practice of the Security Council 24th Supplement 2021” included the following (excerpts):

Article 2 (4) of the Charter was explicitly invoked… In connection with “The situation in the Middle East, including the Palestinian question”, Iran, in response to Israel in [re] Iran’s nuclear programme, underscored that… Iran reserved its inherent right to self-defence and to vigorously respond to any threat, including those made that day by the Israeli regime’s representative, in clear violation of Article 2, paragraph 4, of the Charter of the United Nations, requiring the Security Council to hold that regime accountable for such threats. Iran made reference to the “continued destabilizing measures and military adventurism of the Israeli regime” in the Middle East region, clear examples of which were the continued occupation of the Syrian Golan and parts of Lebanon, as well as the systematic violation of the sovereignty of those two countries in contravention of international law, in particular Article 2 (4). Iran noted that Israel’s accusations regarding “Iran’s peaceful nuclear programme, whose peaceful nature ha[d] been verified on numerous occasions by the International Atomic Energy Agency”, were completely absurd, irrelevant and baseless. [Iran] added that… Israel had explicitly threatened to use force against a Member State of the United Nations. Iran further emphasized that that illegal threat constituted a gross violation of international law and the United Nations Charter, particularly its Article 2, paragraph 4, and had therefore to be denounced and condemned by the Council.

[Re] “The situation concerning Iraq”, Mexico took note of the latest report of the Secretary-General on the implementation of resolution 2522 (2020) and reiterated Mexico’s concern about the abuse of invocations of Article 51 of the Charter of the United Nations in the context of the fight against terrorism… The practice ran the risk of de facto broadening the exceptions to the general prohibition of the use of force, as contained in Article 2, paragraph 4, of the Charter, was adding that such practice was an irregularity that should not be accepted… This was an aberration that Mexico could not accept and one that undermined Iraq’s sovereignty and territorial integrity.

[Re] “The situation in the Middle East”, focused on Syria, Mexico reiterated [its] concern about certain States abusively invoking Article 51 of the Charter to justify the use force without the authorization of the Council. [It] underscored that such practice ran the risk of de facto increasing exceptions to the general prohibition on the use of force, as contained in Article 2, paragraph 4 of the Charter.

[Re] “Protection of civilians in armed conflict”, Pakistan emphasized that counter-terrorism measures did not justify setting aside the limitations of Articles 2 (4) and 51 of the Charter of the United Nations on the non-use of force. He added that Council resolutions on counter-terrorism did not authorize the use of force on the territory of other States without the Council’s express authorization, neither did they justify compromising the requirement for proportionality in the use of force.

These excerpts serve to illustrate the variety of concerns expressed in just 2021 by various nations regarding the applicability, violation, enforceability and subversion of only Article 2(4) by specific states in specific and ongoing circumstances. That Iran accused Israel of a violation of Article 2(4) in the form of issuing threats while also accusing it of continuing to illegally occupy the Golan Heights without consequence demonstrates limits to the interpretation and enforceability of the UN Charter.

Furthermore, as per Mexico’s concerns, Article 51 might be or has been abusively invoked to circumvent Article 2(4), particularly in the guise of anti-terror operations in Iraq. Multiple nations have engaged in various anti-terror campaigns that saw them violate sovereign borders without UN approval and/or resolution.

To be fair to Bellinger, he does not suggest that Article 2(4) has sole or overriding primacy, which is why he goes on to consider Article 51 and the ways that circumstances in Ukraine might be framed in such a way as to invoke Article 51 to justify the use of force without UNSC authorisation.

What we see from these excerpts is that Article 2(4) is not some absolute rule that can be used to clearly hold nations to account swiftly, at all times and without favour.

In that 2021 document, Ukraine is highlighted as a specific case. The following summary of discussions precede Russia’s invasion and we are afforded the means to assess the discussion with the benefit of hindsight.

Case 1

Letter dated 13 April 2014 from the Permanent Representative of the Russian Federation to the United Nations addressed to the President of the Security Council (S/2014/264)

Following the request by the delegation of the Russian Federation for the convening of urgent consultations in relation to the situation in Ukraine and in view of subsequent proposals by several delegations to hold such a meeting in a public format, I have the honour, in accordance with rule 2 of the provisional rules of procedure of the Security Council, to request you to convene an emergency meeting of the Council in the briefing format today, 13 April 2014, at 8 p.m., to consider the alarming developments in Ukraine. I should be grateful if the present letter were circulated as a document of the Security Council. (Signed) Vitaly Churkin

11 February 2021

Some Council members condemned or called upon the Russian Federation to cease its aggression against Ukraine and/or the occupation or annexation of Ukrainian territories. Several speakers expressed support for or underlined the need to respect the sovereignty and territorial integrity of States, including Ukraine specifically. The representative of France stated that France and Germany, as members of the Normandy Four, were fully committed to the realization of a just and lasting peace and restoration of full Ukrainian sovereignty over Donbas. The representative of the United States emphasized that, over the previous year, the Russian Federation had stepped up its efforts to destabilize Ukraine and undermine its sovereignty, adding that the United States would never recognize Russia’s attempted annexation of Crimea. The representative of China opposed any external interference in Ukraine’s internal affairs and the delegation of Tunisia similarly reiterated its stance based on the non-intervention in the affairs of States.

Some participants commented specifically on the need for the withdrawal of foreign forces and weapons from parts of Ukraine. The representative of the United Kingdom said that Russia had to withdraw its military personnel and weapons from the territory of Ukraine, adding that it was Russia’s objective to undermine Ukraine’s sovereignty and territorial integrity. In that regard, the representative of Estonia, who condemned the occupation of certain territories of the Donetsk and Luhansk regions of Ukraine, expressed regret that Russia had neither acknowledged nor reversed its actions and had instead continued to violate the fundamental principles of international law, in particular the Charter of the United Nations and a number of bilateral and multilateral agreements, including the Minsk agreements and the conclusions of the Paris Summit held within the Normandy format, particularly regarding the withdrawal of heavy weapons. The representatives of Estonia, Norway and the United Kingdom all urged the Russian Federation to stop providing financial and military support to the armed formations that it backed. The representatives of Estonia and Norway also expressed concern about the presence of Russian military equipment and personnel in the nonGovernment-controlled areas of Ukraine. The representative of Norway explicitly condemned “Russia’s aggression against Ukraine” and called on the Russian Federation to reverse its illegal annexation of Crimea and the city of Sevastopol. The representative of the United States, stressing that Russia had to immediately cease “its aggression in eastern Ukraine and end its occupation of Crimea”, called on the country to withdraw its forces from Ukraine and cease its support for its proxies and other armed groups. The representative of Tunisia called for the comprehensive and permanent ceasefire to be honored, heavy weapons withdrawn, and the Minsk Agreements implemented fully. The representative of Germany pointed out that Russian heavy weapons had not been withdrawn from the line of command and control, in violation of the Minsk agreements, and further indicated that Russian forces remained in eastern Ukraine.

The Head of the Delegation of Ukraine to the Trilateral Contact Group recalled that at the initiative of the Ukrainian delegation, a plan of joint steps aimed at the implementation of the Minsk agreement had been presented to the Trilateral Contact Group, containing practical proposals aimed at ending the conflict. However, the number of ceasefire violations by Russian illegal armed groups had increased significantly in January and February. He added that obstruction and blocking were becoming almost the norm for the Russian delegation in the Trilateral Contact Group and the negotiation process was taking place against the backdrop of the “harsh reality of Russia’s ongoing aggression”. He further noted the common practice of “illegal crossing of the noncontrolled segment of the border by Russian cargo and road convoys”, which he said delivered weapons, ammunition and personnel to the temporarily occupied territory.

The representative of the Russian Federation underscored that instead of implementing the Minsk agreements, Kyiv kept “spinning tales of ongoing Russian aggression” and that Ukraine “blame[d] everything on that”. He added that no one had cared to provide a “shred of proof of this so-called aggression”.

Here we have NATO allies France, Germany, US, UK, Estonia and Norway all stating that Russia is the sole agent of destablization in Ukraine and the sole party in contravention of both the Minsk agreements and the UN Charter. Tunisia pressed for adherence to those agreements and China and Tunisia stressed that nations should stay out of each other’s domestic affairs. Russia apparently said that Kiev was making up stories and that no one was bothering to back their claims against Russia with proof. That is the sum total of the case record summary within the document. On word count alone, irrespective of the allegiance of the parties making the same statements, Russia is under-represented and its question of “where is the proof?” went literally unanswered.

What we know now casts markedly different light on this record and the objectivity of the claims within it. Poroshenko, Zelensky, Merkel and reportedly Hollande all admitted that the purpose of Minsk was to “buy time” for the arming of Ukraine. In the linked CFR interview, Poroshenko explicitly stated that the Ukrainian army was the optimum negotiator:

Why was so important to sign at that time the Minsk agreement? Two reason. Again, to demonstrate for the whole world that Putin is a liar and the second position helped me to create armed forces. Because when I was elected as the president we don’t have armed forces at all.

First of all, this is misunderstanding. I’m absolutely not against the negotiation. Even more, I am for negotiation. But this negotiation should be providing by the very professional, very efficient, best negotiator, probably, in the world. And we have this negotiator. You know his name? Armed forces of Ukraine. (Laughter.)

They have a brilliant negotiation about the releasing of Kyiv, and Putin said that that was a gesture of the goodwill to withdraw Russian troops from Kyiv. Then brilliant negotiation in Chernihiv, brilliant negotiation in Sumy, in Kherson and Kharkiv. Fifty percent of the occupied territory was released by this negotiator in a short period of time because this is second recommendation, I just want to remind you.

First, don’t trust Putin. Second, don’t be afraid of Putin, please, because if you are afraid Putin go as far as we together allow him to go. And then contrary, if we’d be strong, Ukrainian armed forces, Ukrainian people, American people, because you fully share this success, demonstrate. If we are strong, this is the best form for negotiation.

We are not attacking Putin, by the way. We’re protecting Ukrainian sovereignty, Ukrainian soil. We are not planning to go to Moscow to cross Russian border, or anything like that. Putin will pay already this price because after mobilization, after sanction, all the war come to every Russian family, and please notice how changes the mood in Russia inside.

Poroshenko is literally espousing the notion that “might is right” and that Minsk was a direct means to increase the might of the Ukrainian army and thereby exert greater overall negotiating power over Russia be that at the table or elsewhere. Senator Lindsay Graham is on record in Ukraine in 2017 stating that he backed and would recommend that the US back overt military action by Ukraine to resolve its internal dispute, which would represent US intervention in a UN member state’s internal affairs. This is not necessarily illegal provided that the nation in question expressly invites the assistance of another state, as Syria invited Russia in 2015, but it is another admission by the US that it was clearly interfering in Ukraine, on top of admissions made by Biden, Nuland and others.

Zelensky stated that the Minsk 1 and 2 agreements would not be implemented “in that form”, meaning they would not be implemented period. His and the others’ admissions renders moot much if not all of the statements recorded by the UNSC that were given by the NATO allies in 2021, all of whom must have known that Minsk meant nothing to them and therefore could not be a legitimate agreement with which to hold Russia solely to account. This did not stop them seemingly colluding to duplicitously gang up against Russia and try.

We also know that since 2014, force was exerted by both Ukraine and Russian-backed separatist forces. Attacks were being made on the populace of Donetsk and Luhansk by the Ukrainian government and vice versa. Although this is a brief clip, Poroshenko is apparently referring to his desire to denigrate the Russian population of Donetsk and Luhansk, which may constitute intent to commit mass atrocities. Worse statements were made by other Ukrainian actors in the government and military (see Yulia Tymoshenko for one).

While France and Germany played some mediation and possible oversight or pseudo enforcement role in the Minsk II agreement, the signatories were the OSCE, Russia, Ukraine and representatives of the (then not recognised) DPR and LPR separatists. Depending upon which version of history one reads, both Ukraine and the separatists failed variously to conform entirely to and fully implement the agreements, but it is argued by some that France and Germany should have done more to pressure Ukraine to meet its end of the bargain in the face of direct requests from Russia.

What the above illustrates is that although Article 2(4) is presented as some fundamental rule, it clearly is no such thing. It is subject to interpretation and violation appears to be possible, partly on a partisan basis that results in an inability or lack of will to hold violators accountable within the UN, where allegiances and the wielding of vetoes are fundamental to that lack of enforceability and accountability.

In the specific case of Ukraine and the Minsk agreements, it is admitted that they were multiply used as a political tool for ends that were themselves designed to game the UN Charter and wield disproportionate force against Russia by a group of nations that are militarily allied in a body separate to the UN but that exerts dominant force over the UN by virtue of sheer numbers and cumulative veto power.

As something of an aside, it may also be worth comparing the pre-invasion actions of Russia and the USA.

The USA fomented a coup that ousted the democratically elected Yanukovych, installed the Poroshenko regime in his place and armed and trained military and para-military elements including far-right and neo-Nazi groups who became fully integrated into most levels of the government, military and security services. Those events gave rise to pro-Russian separatist groups that the Poroshenko regime used military force against. The USA’s actions were not considered to be destabilizing (by anyone other than Russia) then or now, even when hindsight demonstrates that they were.

During the coup, Russia predictably annexed Crimea to ensure control over the ports that are home to its Black Sea Fleet. Russia began supporting the separatist groups that sprung up in response to the coup who later, through Minsk, achieved an agreement with the Ukrainian government to recognise some degree of autonomy of Donetsk and Luhansk:

Minsk Protocol

3. Decentralisation of power, including through the adoption of the Ukrainian law "On temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts"

9. To ensure early local elections in accordance with the Ukrainian law "On temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts".

Minsk 2

8. On the first day after the pullout a dialogue is to start on modalities of conducting local elections in accordance with the Ukrainian legislation and the Law of Ukraine "On temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts," and also about the future of these districts based on the above-mentioned law. Without delays, but no later than 30 days from the date of signing of this document, a resolution has to be approved by the Verkhovna Rada of Ukraine, indicating the territory which falls under the special regime in accordance with the law "On temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts," based in the line set up by the Minsk Memorandum as of 19 September 2014.

11. Constitutional reform in Ukraine, with a new constitution to come into effect by the end of 2015, the key element of which is decentralisation (taking into account peculiarities of particular districts of Donetsk and Luhansk oblasts, agreed with representatives of these districts), and also approval of permanent legislation on the special status of particular districts of Donetsk and Luhansk oblasts in accordance with the measures spelt out in the attached footnote,^{[note 1]} by the end of 2015.

12. Based on the Law of Ukraine "On temporary Order of Local Self-Governance in Particular Districts of Donetsk and Luhansk Oblasts", questions related to local elections will be discussed and agreed upon with representatives of particular districts of Donetsk and Luhansk oblasts in the framework of the Trilateral Contact Group. Elections will be held in accordance with relevant OSCE standards and monitored by OSCE/ODIHR.

NATO allies accused Russia of solely destabilizing Ukraine.

Can it be claimed that both Russia and the USA were acting in the Ukrainian theatre with degrees of equivalency? Perhaps. But what the USA was doing was taking control of an entire nation, while Russia took responded to those actions to take control of Crimea and sought a form of indirect or proxy control over only Donetsk and Luhansk.

If any of Russia’s pre-invasion actions can be deemed to have violated Article 2(4), then do the USA’s actions constitute equal or greater violations?

Article 51

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Bellinger asserts:

Suggestion that Russia’s use of force is justified under Article 51 of the UN Charter has no support in fact or law. Article 51 provides that “nothing in the present charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.”

Ukraine did not commit or threaten to commit an armed attack against Russia or any other UN member state.

Article 51 would not permit an action in collective self-defense, because Donetsk and Luhansk are not UN member states. Indeed, they do not even qualify as states under international law, despite their purported secession from Ukraine and Russia’s recognition of them as independent.

In essence, according to Bellinger:

• Russia was not threatened or attacked.

• No other UN member state was threatened or attacked.

• Nothing Donetsk or Luhansk did in order to secede, nor the way in which Russia chose to recognise them as states before the invasion makes them legal states.

Therefore self-defense under Article 51 on the part of the DPR, LPR or Russia does not apply.

Bellinger is careful to frame his opinion only in the context of a threat or attack against Russia within the recent past. He also totally avoids referring to Russia’s notion of its security interests that might encompass more than a specific and actual physical attack against its territory or citizens. He makes no reference to any case in which any other nation may have cited threats to its security interests (that transcend its borders) as a basis for invoking Article 51. He denies that Russian citizens in DPR and LPR subjected to attack by the Ukrainian state constitute either Russian security interests or any form of separate and legitimate State, regardless of Russia recognising them as such two days before invading. He avoids the question of whether the nature, scale, targeting or duration of the attacks could constitute genocide or atrocities. He also ignores statements made by Zelensky days before the invasion regarding his possible intention to pursue nuclear weapons, after Russia declared in December 2021 that it would not tolerate any such move. Bellinger simply asserts that there is “no evidence of genocide”.

This begs the questions of whether other cases exist that undermine Bellinger’s assertions and whether a case with supporting evidence can be made in Russia’s favour. We can look for other events and Scott Ritter believes that such a case can be made:

I believe Russia has articulated a cognizable claim of pre-emptive collective self-defense under Article 51 of the UN Charter. The threat posed by NATO expansion, and Ukraine's eight-year bombardment of the civilians of the Donbass fall under this umbrella.

Scott Ritter

Go to 01:38:50 to see Scott Ritter respond to a direct question around Ukraine’s sovereignty and how we end the war. He discusses Kosovo and Article 51.

The justification of pre-emptive self-defense is recognised in international law. “The International Law of Anticipatory Self-Defense and U.S. Options in North Korea” describes three forms of strike that qualify as self-defense:

• Anticipatory self-defense often corresponds with the standard established in the famous 1837 Caroline case, in which British soldiers in Canada crossed the Niagara River to attack and send over Niagara Falls the American steamship Caroline that was assisting Canadian rebels. The British asserted that they attacked in self-defense, but then-Secretary of State Daniel Webster wrote in correspondence with the British government in 1842 that the use of force prior to suffering an attack qualifies as legitimate self-defense only when the need to act is “instant, overwhelming, and leaving no choice of means, and no moment for deliberation.”

• Preemptive self-defense tends to have a longer time horizon. In this case, a state often views an opponent’s particular, tangible actions as almost certainly developing into an armed attack against it. While there may be some time before the opponent can launch the attack, the opponent’s actions indicate an attack is likely should developments continue.

• Preventive self-defense seeks to halt the development of a future threat, often without having precise information about where or when the attack might occur. States sometimes invoke preventive self-defense even without specific evidence of the opponent’s capacity or intent to attack. Many states often consider actions falling within this category as illegitimate. However, some nations, including the U.S., have supported an understanding of self-defense that could include prevention under certain conditions.

The article goes on to reference several events that fall into these categories:

The Cuban Missile Crisis

In 1962, before either the Soviet Union or Cuba used force against it, the U.S. government instituted a “defensive quarantine” against Cuba. Some considered this to constitute a blockade under international law that is regarded as an act of aggression. Thus a blockade would violate restrictions on the use of force under Charter Article 2(4) or would require the U.S. to assert a legal argument claiming self-defense—a shaky proposition. By arguing that the defensive quarantine did not technically qualify as a blockade, the U.S. attempted to dodge the need to provide legal justification for the use of force.

Instead, in deliberations with the international community the U.S. focused its legal rationale on regional organizations’ power to authorize force rather than rely on legitimacy derived solely through self-defense. In Security Council debates over the issue, no clear consensus supporting or rejecting the doctrine of preemption emerged. Some indicated that while self-defense before an attack was legal, the U.S. had not met the strict Caroline standard.

The Six-Day War

The Six-Day War, one of the most commonly cited examples of a preemptive strike, began on June 5, 1967, when Israel launched a surprise attack against Egyptian forces. In the course of the short conflict, Israel more than tripled its territorial claims while repelling an assault it believed posed an imminent threat.

Several factors went into Israel's decision to strike, particularly Egypt’s expressed hostile position, its decision to expel U.N. forces from the Sinai and its closure of the Straits of Tiran. Ultimately, after significant political negotiation and the failure or rejection of several other courses of action, the Israeli government decided on a military strike to defeat the perceived existential threat posed by Egypt, along with its allies such as Syria and Iraq.

The Israeli position has consistently presented the 1967 war as defensive, legally justified by the actions and positions of its opponents. Many historians take a similar view. Yet other experts and many Arab states have called the conflict a war of Israeli aggression and deemed it unjustified given conditions on the ground.

The Israeli action drew mixed international reaction, and Israel largely avoided criticism within the U.N.

Operation Opera (Osirak Bombing)

On June 7, 1981, Israel launched an airstrike against the Osirak nuclear reactor in Iraq, close to Baghdad. Although the facility was not yet operational, the Israeli government feared Osirak would become capable of producing material necessary for a nuclear bomb.

In a statement after the attack, the Israeli government said that its intelligence indicated the reactor would have become operational by July or September of that year. Given that Israel could and would not attack a “live” reactor site for fear of nuclear contamination, it claimed to have a small window for action:

We were therefore forced to defend ourselves against the construction of an atomic bomb in Iraq, which itself would not have hesitated to use it against Israel and its population centers. Therefore, the Israeli Government decided to act without further delay to insure the safety of our people.

The rationale behind the decision explicitly employed the future tense: At some point Iraq would have nuclear weapons capability that it would then likely use against Israel, judging by its past statements and the beliefs of Israeli intelligence. Yet Israel lacked clear indication that Iraq had the capability to carry out the attack, shifting the action closer to prevention than preemption.

The U.N. Security Council, including the U.S., unanimously condemned the attack, calling it a violation of the U.N. Charter and international norms.

Operation Infinite Reach (Al Shifa Bombing)

In 1998, the U.S. conducted its first “unreservedly acknowledged” preemptive strike against a terrorist organization. In a plan codenamed Operation Infinite Reach, the Clinton administration launched a missile attack on a factory in Khartoum, Sudan, that it said produced the VX nerve agent for Osama bin Laden. The factory, however, produced pharmaceuticals for the Sudanese population. Many Arab nations condemned the attack as a violation of Sudanese sovereignty.

As with other claims to self-defense, this classification has come under significant scrutiny. Some argue that the strike is better understood as a post-attack response to the bombings of the U.S. embassies in Kenya and Tanzania that had happened shortly earlier that year. Reports in the years after the Sudan attack showed that the intelligence used in the decision contained significant gaps.

Invasion of Iraq

Although the George W. Bush administration legally justified its decision to send forces into Iraq in 2003 on the basis of Security Council resolutions, the administration relied in part on a claim of self-defense. The Bush administration argued that Saddam Hussein's regime armed with weapons of mass destruction presented a threat to both the region and the United States. In context of the Bush administration’s views and statements on pre-strike attacks in the National Security Strategy of 2002, this justification veered close to a doctrine of preventive self-defense: an allegedly guaranteed threat on a more ambiguous timeline that had to be stopped before it could achieve the capacity to strike. President Bush said in a speech Oct. 7, 2002:

Some ask how urgent this danger is to America and the world. The danger is already significant, and it only grows worse with time. If we know Saddam Hussein has dangerous weapons today—and we do—does it make any sense for the world to wait to confront him as he grows even stronger and develops even more dangerous weapons? … America must not ignore the threat gathering against us. Facing clear evidence of peril, we cannot wait for the final proof, the smoking gun that could come in the form of a mushroom cloud. …

The ideological framework underlying this policy proposal should not have come as a surprise. The National Security Strategy of 2002 explicitly suggested a more flexible understanding of what constitutes an “imminent” threat (which would legitimate certain military actions in self-defense). In it, the administration made similar arguments, noting that the government could use the likelihood of a future threat to justify immediate action.

Operation Orchard (Al Kibar Bombing)

In 2007, Israel launched another airstrike, this time against a secret nuclear reactor named Al Kibar that had been constructed by the Syrian government in a remote part of that country. The attack continued the Begin Doctrine, an Israeli policy stemming from the 1981 Osirak strike, which said that Israel would not permit its adversaries in the Middle East to develop nuclear weapons.

The strike succeeded, covertly destroying the reactor. Intriguingly, parties kept virtually silent in the leadup to the strike and its aftermath. Details about the strike emerged only slowly. Deeks contrasts the lack of outcry over Israel's 2007 bombing with the swift international condemnation after the Osirak bombing, even though Al Kibar clearly did not meet the Caroline standards. She notes that WMD in the hands of states deemed unpredictable may affect international responses to strikes taken in asserted self-defense.

Given the above, it is quite clear that legal precedents exist that Russia could cite in order to justify its own position. Bellinger’s Article 51 argument is carefully framed in a limited way that boxes off any reference to the above forms of “self-defense”. This is deliberate obfuscation. He also makes no reference to Russia’s wider published arguments for why it invaded Ukraine, as laid out in its December 2021 statement. He should be assessing that statement in the historical context of Russia’s growing, long-standing declarations of perceived threat that the ongoing and deliberate expansion of NATO presented to it that culminated in potential Ukrainian accession and the knowing pursuit of that strategy by USEUNATO as a deliberate means to provoke then weaken Russia. Bellinger’s assertion that “few (if any) lawyers are likely to argue that secession by Donetsk and Luhansk was justified in this case” forms only a tiny part of the potential Article 51 argument Russia’s lawyers could make. And what do the potentially few lawyers making such an argument matter? Which lawyers is he referring to? There only needs to be Russia’s lawyers making that argument in Russia’s favour. Russia doesn’t care about any other lawyers.

Genocide

Bellinger explicitly states that there is no evidence of any kind of genocide inside Ukraine:

There is no evidence that Ukraine engaged in any of the defined actions and certainly no evidence of an intent to destroy in whole or in part any group in eastern Ukraine.

He goes nowhere near stating whether anyone has tried to collect evidence of genocide or atrocities. Some cursory searching of material covering the last 9 years would suggest otherwise. Patrick Lancaster, Graham Philips and others have found many residents of DPR/LPR who will attest to having been subjected to ongoing attacks. The Russians and the administrators of the DPR and LPR claim that there is evidence. Failure or a lack of will to acknowledge and examine the other side’s claims does not constitute the non-existence of evidence of genocide, targeted attacks and mass killings and other acts that would fall under relevant UN articles.

It is rarely if ever pointed out that Ukraine deliberately cut off water supplies to the Crimean peninsula in order to deliberately subject the area and its inhabitants to drought as a means of persecution. Russia eventually invested $100m in desalination. Is inducing drought an act of aggression or some form of event that can contribute to an atrocity?

Bellinger states that even if genocide by Ukraine against Russians was provable, no UN member state would be able use the Genocide Convention or UN Charter to justify the use of force to stop it.

Compare his statement to the CFR’s own précis of Matthew C. Waxman’s 2009 Special Report, “Intervention to Stop Genocide and Mass Atrocities” (full report here).

Another important part of this debate concerns the international legal system governing the use of force in situations of actual or potential atrocities. Waxman asks whether this legal regime is effective in preventing and stopping such crimes. International legal practices constrain swift action and require extensive consultation, especially in the United Nations Security Council, before particular steps can be taken. Waxman, though, argues that the system has certain benefits: it can confer legitimacy and help actors coordinate both military and nonmilitary efforts to prevent or stop atrocities. He also contends that different arrangements of the kind some have proposed would be unlikely to prove more effective.

He therefore opposes wholesale reforms but recommends more modest steps the United States could take to improve the current legal regime. These measures include expressing strong but nuanced support for the responsibility to protect and working with other permanent members of the UN Security Council to discourage the use of vetoes in clear cases of mass atrocities. But the report also argues that the United States must be prepared to act alone or with others in urgent cases without Security Council approval.

Note, the above explicitly references steps the US could take. This emphasis makes sense considering that the CFR is a US body and the report is written from that perspective. However, the final quoted sentence impresses the need for the will and ability for the US to take unilateral action regardless of UN Charter, the Genocide Convention or the determination of the UN Security Council. The CFR itself espouses “rules for thee and not for me”. Combine this with Bellinger’s view, and we must ask an obvious question:

If the US determines that it should be able to exercise its sole judgement and act unilaterally without consequence, why shouldn’t any other UN member nation be able to do the same?

Russia could simply state “we are following Waxman’s position on Ukraine and choosing to act unilaterally because of our independent assessment and our determination of the need to act outside of the shortcomings of the present legal regime.” In doing so, would it have legitimacy in the eyes of Waxman and the CFR?

The CFR itself is trapped between Waxman and Bellinger, and it would appear that in publishing his opinion, Bellinger doesn’t even realise where it leaves the CFR. Waxman himself tells us about specific cases where genocide has been a justifying reason for uni- or multilateral action that calls into question Bellinger’s assertions. He also lays out US centric recommendations that could apply to any Permanent Member of the UNSC, who all wield vetoes. Excerpts:

It seems that every major crisis of this sort, such as Rwanda in 1994, Kosovo in 1999, and Sudan more recently, generates interest in bolstering the capacity and will of the United States and its partners to respond.

The 1999 crisis and NATO intervention in Kosovo generated particular public attention to the issues of humanitarian military intervention and questions about the adequacy of the UN-centered international legal system. By contrast, the more recent debate prompted by crises in Sudan and elsewhere has generally downplayed issues related to military intervention and international law regarding the use of force. There are several reasons for this relegation of military and legal issues.

“Summoning the political will to take risks is the main obstacle to converting the responsibility to protect into a program of action,” concludes a prior Council Special Report upon which this report builds. The task force on genocide prevention briefly discusses international norms when it recommends “promoting a system of international norms and institutions that averts potential genocide and mass atrocities before they occur, stops them quickly and effectively when they occur, helps societies rebuild in their wake, and holds perpetrators accountable.” But the bulk of its specific recommendations focus on the issues of political will, preventive diplomacy, and capacity-building.

Force or threat of force may be used in cases of genocide and mass atrocities to, among other things, protect vulnerable populations, guard relief efforts, degrade perpetrators’ capacity for repression, and signal a willingness to escalate further if necessary. Military operations short of major invasion could include:

• securing/controlling transportation routes and borders;

• reinforcing peace operations;

• enforcing no-fly zones, safe havens, or arms embargoes;

• jamming broadcasts and other communications;

• precision-targeted strikes; or

• demonstrating presence.

Second, although military threats and force are rarely the primary tools for stopping mass atrocities, they remain important ones. Threats of military force can help deter systematic atrocities before they occur. Military measures can help stop ongoing atrocities by, for example, interposing forces between conflict factions or degrading a state’s capabilities for repression. And intervention or the threat of it may be needed to back up other tools, such as international criminal law, diplomatic efforts, or economic sanctions.

Third, nonmilitary mechanisms are critical to stopping mass atrocities, and nonmilitary means are almost always a preferred option when effective. None of this is to deny that military intervention carries risks, including the possibility of spurring dangerous backlashes or causing its own direct human toll.13 Nor is it to assert the primacy of military over nonmilitary means. Rather, this report takes as one of its premises the UN secretary-general’s recent counsel that mass atrocity crises require “early and flexible response[s] tailored to the specific circumstances of each case,” and that any sound strategy will combine many elements, most of them nonmilitary.

Recommendations

To best combat the threat of mass atrocities consistent with other U.S. foreign policy interests and priorities, the United States should take independent steps and work with allies to improve the responsiveness of the existing UN Security Council and simultaneously prepare and signal a willingness, if the UN Security Council fails to act in future mass atrocity crises, to take necessary action to address them. This requires a careful diplomatic balance asserting strong support for a normative framework that facilitates timely and decisive intervention but not provoking backlash among states already hostile to existing or emerging norms that limit sovereignty.

In supporting the responsibility to protect, the United States should emphasize appropriate limits on Security Council vetoes.

China and Russia are especially unlikely to disarm themselves of the veto power. The United States, too, should be wary of ceding its veto power given the propensity of other blocs of states to invoke the responsibility to protect in unduly politicized ways.

The United States should prepare to operate in cases of urgent necessity absent UN Security Council authorization. The strategy laid out in this report emphasizes improving the Security Council’s functioning through unilateral and multilateral efforts that help raise the costs of actions that slow or thwart its responsiveness. That said, the United States should be prepared to act outside the Security Council if necessary. Although it should not go so far as to declare in advance an explicit intention to do so, the United States should not completely hide its willingness to do so either. For policymakers, this means being prepared to act within a legal gray zone when the moral calculus so dictates. Military and civilian contingency planners should actively consider scenarios for which Security Council action is neither present nor immediately forthcoming. Operating in an international legal gray zone will require tremendous investments of political and diplomatic capital, especially with respect to allies reluctant to act without clear legal authority. But the potential payoff can be high not only in terms of immediate humanitarian imperatives but also in shaping the future legal environment in ways more responsive to such needs. As the Kosovo crisis shows, operating this way in cases of urgent humanitarian necessity inevitably shapes the future normative terrain, especially as international bodies react ex post facto and the precedential value of actions are debated. For the United States, this means it must conduct its diplomacy and justify publicly its actions in ways to promote long-term a more protective regime. Meanwhile, those states skeptical of or hostile to a more human rights– protective regime must come to see it as in their own long-term interests to facilitate rather than undermine timely and decisive action.

Take all of the above, replace “United States” with “Russia” and consider what Russia has done and said not just since 2014 but since the day James Baker told Gorbachev “not one inch further east”.

If the US thinks that it can and should unilaterally seek to enact any or all of Waxman’s and the CFR’s position on genocide and atrocity prevention and cessation including unilateral use of force, in wilful contravention of the UN Charter, why can’t Russia - or any state for that matter - adopt any or all of these recommendations as well? Has it?

From Russia’s perspective, one could argue that it has. It has used nonmilitary means in Ukraine to flag its concerns about the Ukrainian situation at the UNSC since 2014, which the Minsk agreements recognise, legitimise and ratify. It has constantly objected to NATO expansion since before 2014. It has pursued diplomatic and political interventions to stop conflict that it claimed involved mass atrocities in Ukraine involving Russian and Ukrainian casualties. It has exercised unilateral sponsorship of third party separatist/proxy force and possibly conducted its own covert military operations in the DPR and LPR prior to the invasion to counter precedent and simultaneous US and proxy actions that it believed were destabilizing and resulting in mass deaths and forming late stage threats to its security interests. This culminated in the invasion, which could be argued meets Waxman’s endorsement of unilateral action that exists within a legal gray area and that inherently triggers legal debate and “inevitably shapes the future normative terrain”.

By way of comparison, exactly what did the US do and say with regard to the supposed threat from Iraq and Afghanistan, and how does that compare to Russia’s view of Ukraine?

Legal Gray Zone

Taking all of the above into account, does Bellinger’s opinion stand up on face value? Is it anything more than a deliberately limited framing of what is clearly a bigger, more nuanced and ambiguous situation? A situation that hinges largely on what case a nation thinks it can justify set against what it thinks it can get away with in order to achieve either political objectives (including “self-defense” of its territory and/or security interests) and/or the cessation of what it identifies as genocide atrocities, given that the US itself recognises that the UN, its Charter, processes and structure render it a shambling dolt when it comes to preventing genocide.

Could Russia’s actions in Ukraine be said to adequately map to Waxman’s US-centric recommendation? Is it reasonable to believe that if the US thinks Waxman’s position can and should apply to itself, then it could and should apply to any other UN member state? If not, why not?

If the argument that Russia’s invasion is so patently illegal, why is it that 14 months has passed and no one has lodged a case in the ICC against Russia in line with Bellinger’s assertions? Why is the only case so far and only just lodged based on a US State Department-funded, deeply flawed and speculative “report” into “RUSSIA’S SYSTEMATIC PROGRAM FOR THE RE-EDUCATION & ADOPTION of UKRAINE’S CHILDREN”? That report clearly states in its methodology (excerpts):

The investigative methodology for this report relies on extensive open source research. This process includes aggregating and cross-verifying multiple sources to understand the system of relocations, camps, reeducation, adoptions, and foster placements. Facilities that allegedly host children from Ukraine were identified through social media posts, government announcements and publications, and news reports. The locations of these camps and related facilities were then geolocated by referencing photographs, videos, and descriptions of children from Ukraine at the location against reference photographs on the camp’s website or user-generated photographs on mapping sites (e.g., Yandex Maps). Information about the activities at these sites and the experiences of children and parents was also collected, analyzed, and verified by multiple researchers.

This methodology has limitations. Yale HRL explicitly relies on open source information to do its work and does not conduct interviews with witnesses or victims. When analysts are unable to identify whether a child had returned home, it can be difficult to determine who has custody of the child through open source means alone.

Literally, no one involved in the production of this report has met or questioned any supposedly abducted or “re-educated” child, any of their family, any form of witness or supposed perpetrator. Indeed, the methodology does not actually explain the detailed manner in which any “researcher” made quantitative or qualitative determination of evidence of abduction.

Journalist Jeremy Loffredo did at least examine the report, attempt to assess the warrant based upon it, and questioned the Director of Yale University’s Humanitarian Research Lab, Nathaniel Raymond, who published the report. Loffredo found contradictions between the warrant, the report and Raymond’s statements, and connections between Raymond and US Intelligence. He also travelled to Russia to visit at least one location to find out what was going on there, which is more in real terms than any of Yale’s researchers did.

• The International Criminal Court issued an arrest warrant for Russian President Vladimir Putin, accusing him of the “unlawful deportation” of Ukrainian children to a network of camps inside Russia. The warrant was based on a report by the Yale HRL center, which is funded by the US State Department.

• US journalist Jeremy Loffredo visited one of Russian government-sponsored camps in question. At The Donbas Express, located just outside of Moscow, Loffredo met youth from war-torn regions who were flourishing thanks to free music instruction, and grateful to be in a secure environment. This article features his exclusive video report.

• A Grayzone review of the Yale HRL report found the paper’s content contradicted many claims contained in the ICC warrant. It also undercut incendiary statements its director, Nathaniel Raymond, issued during media appearances.

• In an interview with Loffredo, Yale HRL’s Raymond further contradicted allegations he made in a CNN interview about a massive “hostage situation” underway in Russia, acknowledging that most of the camps he researched were “teddy bear”-like cultural programs. He also disclosed his collaboration with US intelligence.

ICC’s Putin arrest warrant based on State Dept-funded report that debunked itself

Why have no other warrants been issued apart from this one which is instantly called into question with the simplest documentary analysis and some primary, on-the-ground research? If the circa 6,000 children can be identified, verified, found, tracked and traced and shown to have not been abducted or re-educated, the entire case collapses. It’s possible that the report methodology alone lacks sufficient rigour to convict Russia of anything. One might argue that the whole report is based on unsubstantial interpretation of questionable open source “evidence” and hearsay.

Why has no warrant been issued for Bucha or any purported video or photo evidence based “war crimes” conducted by Russian troops, backed by witness testimony?

Enforceability

Neither the US, Ukraine nor Russia have ratified the Rome Statute and do not recognise the ICC. Therefore, the international crime of aggression cannot be effectively tried in the ICC against any of them, unless one considers trial in absentia entirely valid. When threatened with potential investigation by the ICC for its war crimes, the US literally adopted a legal policy to invade The Hague:

In response to the formal establishment of the ICC in 2002, the Bush administration passed into law the American Servicemembers Protection Act of 2002, commonly referred to as the 'Hague Invasion Act' by its opposition. Its eerie nickname stems from its vague wording, which allows the US to "take all means necessary and appropriate" to release US personnel being held by the International Criminal Court.

John Bolton's crusade against the International Criminal Court is so hard-line it threatens a US invasion of Holland

In response the the warrant issued against Russia by the ICC, Russia has issued an arrest warrant against the ICC’s chief prosecutor, Karim Khan.

There is talk of another form of special tribunal to deal with Russia’s invasion, but this is likely to be fraught and execution of a trial and enforceability of any judgement remains in question.

In simple terms, what this means is that many states and Great States still lie above and outside of the reach of international law when it comes to the ICC and so, as in the case of US war crimes, the question of meaningful, credible prosecution via the ICC is an open question, irrespective of what Bellinger and others will assert.

Ray McGovern - Putin’s Options?

Former CIA staffer and specialist on Russia, Ray McGovern, recently published a brief article responding to the Eisenhower Network’s open letter, “The U.S. Should Be a Force for Peace in the World” published in the NYT.

Although the letter’s signatories, which include Jeffrey Sachs, states that Russia had options other than war, McGovern asks what those options were.

When one glibly asserts, glibly [sic], that that a country that launched hostilities had other options, well, what were they? A statement as lengthy as that published in the NYT might have made room for an attempt to cite one or two of those options (This lacuna was why I demurred when asked to sign the ad.)

Ray McGovern

VST leaves it to you to ponder the Eisenhower Network’s letter and the contrast with McGovern. Make of them what you will, factoring in whatever you make of the untried, unjudged legalities above.

Legal or Illegal?

The question remains. To label the conflict legal or illegal is to assert such until someone attempts to present a case based around the crime of aggression and its relationship to Article 2(4) and 51, some credible body assesses it and renders a judgement. None of this has been done.

The only warrant is based on something that might be as weak as opensource hearsay relating to allegations of child abduction made by people sitting in Yale wilfing across the public internet looking for pesky evidence that Russia, the Great Child Abducting State was lax enough to leave all over the place. As with all US wars and many others, a credible and fair investigation, trial and judgement may never come to fruition. Even if it did, the judgement may not be enforceable in any meaningful way and if Russia took a leaf out of the US “playbook”, it would invade the Hague instead of any other neighbouring Eastern European nation, as some scaremongering war hawks would have everyone believe.

What VST has attempted to lay out is just an illustrative view of issues that underpin the question of legality of any act of invasive war or crime of aggression on the international stage.

We leave it for you to decide whether Bellinger’s opinion - or that of literally anyone stating that they know or believe the Ukraine war is legal or illegal - is worth the paper it was never written on.