LEGAL ANALYSES

WHAT DOES INTERNATIONAL LAW SAY ABOUT THE RUSSIAN INVASION OF UKRAINE?

by JUAN LEAL-MENDOZA STAFF WRITER

Note: This article will focus on the implications of the large-scale invasion that started in February of 2022, rather than the more localized stage of the Russo-Ukrainian conflict that ran from the summer of 2014 until the beginning of the invasion.

It has been nearly a year since war returned to Europe, when the Russian army began its shocking invasion of Ukraine. The global general public has been deeply polarized in their varied responses to the conflict, with contributing factors receiving different degrees of coverage. One of such lesser covered factors are the legal aspects of the invasion, which remain largely unperceived by the public. Even then, those aspects remain key in understanding the international response to the invasion. This article will examine the legal aspects surrounding the Russian invasion of Ukraine, and how it affects the global response towards the conflict.

To analyze a conflict of this nature means firstly addressing the foundational document of post-World War II international law: the United Nations charter, with an emphasis on Articles 2 and 51. Among Article 2’s various sections, subsection 4 states that UN member states (to which both Russia and Ukraine are part of) “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 51 acts however as a piece of nuance to Article 2(4), as the former article says that self-defense by a UN member state is authorized so long as it is communicated with the UN Security Council. This is a very important differentiation.

Senior policy fellow at the European Council on Foreign Relations Anthony Dworkin has pointed out previously that “the prohibition on the unjustified use of force is the cornerstone of modern international law,” pressing the importance of these two articles for the modern international order and its limits. In short, the UN charter prohibits the use of armed force, with the exception of its use for self defense or against other justified threats to a state.

The “justified threat” most interwoven to this war has been genocide, a case used by both sides. Russian President Vladimir Putin has consistently clamed there is a genocide going on in Ukraine against Russian speakers in the country, and has used this as a rationale for their invasion. However, analysis by Leiden University’s Egbert Fortuin points out that the case for these Russian accusa- tions are based on half truths at best, and falsehoods at worst. The Russian case is further weakened when considering that the Russian policy of unilaterally taking children from their Ukranian parents to new families in Russia is explicitly considered as genocide under the Convention on the Prevention and Punishment of the Crime of Genocide, per Article II, subsection e. This builds up towards a total breach of Ukrainian sovereignty, with repercussions beyond even just the concept of “justified threats” in international law.

Ukrainian national sovereignty is also protected by a key treaty: the Budapest Memorandum. The accord tied Russia, the United States and the United Kingdom together in respecting Ukraine’s national sovereignty, and to refrain from violating such, in exchange for Ukraine giving up their nuclear weapons. Russia’s invasion presents a breach of the binding accord, further weakening the legal credibility of Russia’s case. Many countries have used this treaty as evidence of the illegality of Russia’s actions, and therefore have accelerated economic and military aid to Ukraine. Ultimately, there are multiple legal antecedents that cement the conflict’s illegality, which are all factors for future legal or political actions.

International organizations have also begun casting their decisions on the conflict.

The Russian case for self-defence and genocide is weak, while the parallel Ukrainian case is evidently consistent with reality. The International Court of Justice (ICJ) agrees with this, as in March 2022, the court decided 13-2 in Ukraine v. Russia that Russia must stop its invasion immediately, and some concurrent opinions signaled towards a shared belief that Ukraine is falsely being accused of genocide. It is worth noting that this is a temporary ruling while the court makes a final decision, but given the overwhelming majority