Prantl, Alexander

Schmalenbach, Kirsten

English

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How to End an Illegal War?Alexander Prantl, Kirsten Schmalenbach 2022-04-21T08:00:25It is a commonplace that wars are ended by peace treaties, and that is what manyhope for in case of Russia’s ‘war of choice’ in Ukraine, which has been raging forover 50 days with great human losses. When it comes to armed conflicts it is theinternational community’s modus operandi to stop the fighting as soon as possible,preferably by negotiating a ‘quick peace’. Indeed, when Russia illegally annexedCrimea in 2014 and fomented the militant separatist movement in the Donbas, thethen French president François Hollande and German chancellor Angela Merkel putforth a peace plan on 7th February 2015. Ukraine was forced to accept what becameknown as Minsk II due to its weak military position in the Donbas and agreed, interalia, to undertake constitutional reform to provide the Donbas with greater autonomy.The agreement was signed by the representatives of Ukraine, Russia, the separatistleader as well as a Swiss representative of the OSCE.Damocles’ Sword over Peace Treaties: Article 52 VCLTArticle 52 Vienna Convention on the Law of Treaties (VCLT) states that ”(a) treatyis void if its conclusion has been procured by the threat or use of force in violationof the principles of international law embodied in the Charter of the United Nations.”This seemingly is at odds with the international community’s approach to peace, andfor good reason. The pursuit of a ‘quick peace’ often means appeasing an aggressorto some degree to stop the fighting, creating scenarios where illegal force can besuccessfully used to extract favourable peace treaties. Hence, Article 52 VCLTraises an interesting question suspiciously absent from public discourse: Can alegally binding peace treaty emerge from an illegal war?At the heart of Article 52 VCLT is the phrase “has been procured”, which requiresa causal link between the unlawful use of armed force and the conclusion of thetreaty. It is, and always has been, the clear aim of Article 52 VCLT to safeguardthe principle of free consent by preventing an aggressor from extracting contractualadvantages through the unlawful use of force. For this reason alone, it is legallyirrelevant whether an aggressor starts a war to achieve certain treaty concessions orwhether concessions are opportunistically seized as a by-product of the illegal war. Ifa treaty has been procured by the illegal use of armed force, the treaty is ex lege andab initio null and void (Article 69(1) VCLT). Evidently, Article 52 ties in not only withthe general prohibition to use armed force (Article 2(4) UN Charter) but also with theobligation of all States not to recognise any illegal gains procured through it (ICJ WallOpinion).The UN General Assembly, in Res ES 11/1 of 2 March 2022, was quite clear aboutthe illegality of Russia’s war when stating in para 2 of the Resolution’s operationalsection: “…the aggression by the Russian Federation against Ukraine in violation ofArticle 2 (4) of the Charter.” This leaves little doubt that Article 52 VCLT has beenviolated by Russia and Ukraine would not be exercising free consent in agreeing to- 1 -whatever terms they may settle upon. Russian troops fighting in Ukraine, occupyingparts of its territory and bombarding civilian population centres create a direct causallink between Ukraine consenting to a peace treaty and Russia’s unlawful militarycoercion.Valid Treaties can Emerge from Illegal WarsHowever, this Article-52 assessment has a proviso. If the scope of a treaty isrestricted to the mutual cessation of hostilities (an armistice), the provision ofhumanitarian assistance, a prisoner-of-war exchange and so forth, the peacetreaty cannot be deemed as having “been procured by the threat or use of force”.This is because, under Article 30 State Responsibility, every war necessitates theconclusion of such treaty, however, the aggressor has not exploited the situationfor any gain beyond ceasing the hostilities and suffering. One can even argue thatarmistices, as a prelude to lasting peace, are a matter of ius in bello (Article 36 to41 of the 1907 Hague Regulation) and, therefore, lex specialis to Article 52 VCLT.The interpretation of Article 52 VCLT in light of its object, purpose and systemiccontext within international law (Article 31(1) and (3)(c) VCLT) excludes such treatiesfrom the legal consequence of nullity. For example, even though the ICJ establishedin its 2005 judgment in Congo v Uganda that Uganda committed a grave violationof Article 2(4) UN Charter when it militarily intervened in the Congo in 1998 (para165), the 1999 Lusaka Ceasefire Agreement between Congo, Uganda, Namibia,Rwanda, Zambia and Zimbabwe is arguably legally valid because its provisionsfocus on ending the hostilities and the disentanglement of the conflicting parties.The ICJ in Congo v Uganda was neither asked to assess the legality of the LusakaCeasefire Agreement nor did it discuss Article 52 VCLT ex proprio moto; rather theCourt in para 26 approvingly noted that the agreement acknowledges the legitimatesecurity concerns of Congo’s neighbours, including Uganda. Indeed, the LusakaAgreement in its para 19 obliges the Congo to enter into a national dialogue with itsarmed opposition, which makes perfect sense from a regional security point of viewbut harbours nevertheless the danger to push the agreement towards running afoulof Article 52 VCLT.The Court’s pragmatic approach to peace cannot surpise: effective peace treatiesusually have a much broader approach in that they seek to establish the conditionsfor lasting peace between the warring parties. However, this is difficult to achievein the current conflict because Russia seeks to address its security concerns byrequiring, inter alia, Ukraine’s demilitarisation and surrender of a significant portionof its territory to Russian control. Such ‘concessions for peace’ will impact the entirepeace treaty: Article 52 VCLT does not allow for the surgical removal of any partsinfected by the illegal war; the treaty is in its entirety, null and void (Article 44(5)VCLT).When Law and Practice CollideEvidently, this unambiguous legal assessment suffers from a certain detachmentfrom real-world practice when it comes to ending wars. One can reasonably ask,is not almost every peace treaty the outcome of coercion forcing consent from amilitarily overmatched party? Indeed, the legal rigidity of Article 52 VCLT profoundly- 2 -conflicts with the international community’s prime objective regarding conflict, namelyto restore peace irrespective of who infringed Article 2(4) UN Charter. As such, mostgovernments, relevant organisations and international lawyers, be they pragmatistsor realists, value peace above the principled approach of Article 52 VCLT. Returningto Ukraine, a good example of this mindset is Minsk II, hailed in most of Europeas a fragile path to peace but one that pushed aside any legal concerns about thecoercion used to gain Ukraine’s consent.The conflict between two core international values, namely peace and the sovereignconsent of an attacked State, can be difficult to resolve on a political level. However,it seems to be the start of a slippery slope if the international community simplysacrifices one core value to preserve another. This leads to the question of whetherinternational law provides a way out of this dilemma. One may think an attackedState has a sovereign right under international treaty law to waive the legalconsequences of Article 52 VCLT for the sake of peace, however, Article 45 VCLTprecludes this waiver if the waiver itself is procured by the illegal use of armed force.Another possible solution may seem to be the authority of the Security Council. Inthe case of Ukraine, the very idea that the Security Council could use its Chapter VIIpowers to furnish a future Russian-Ukraine peace agreement with legally-bindingforce has a particularly bitter taste given Russia’s presence in the council. In anycase, the ius cogens character of the prohibition of the use of force obliges both UNMember States and the Security Council to not recognise any gains made by Russiavia an illegal war. This is an immutable situation as even Article 103 UN Charterdoes not place the Security Council above Article 53 VCLT (ius cogens).Solution without SacrificeAs such, the legal solution proposed here for the current conflict seeks to put Article52 and 44(5) VCLT, which render the coerced treaty void, into the wider context ofgeneral international law. If, under present conditions, the Russian Federation andUkraine do conclude a comprehensive peace agreement that stipulates Ukraine’sfuture neutrality, the treaty would be void. However, any sections of the voided treatythat reflected the parties’ general obligations under Article 30 State Responsibility,while simply declaratory within the treaty context, are still valid requirements undercustomary international law. In other words, the general obligation to cease theunlawful use of force persists beyond the treaty’s nullity and forms the legal basis foran armistice and the withdrawal of troops. As for the demilitarisation and neutralityof Ukraine, if these concessions are willingly offered rather than being ‘procured’ byRussia’s military aggression and/or future threats thereof, an agreement about suchwould be both legally valid and binding upon Ukraine. If, however, Ukraine manifestsa desire to pursue a course other than demilitarised neutrality when hostilities cease,then the original offer was seemingly more procured than willingly made. Whateverthe outcome proves to be in Ukraine, Minsk II has shown us a quick path to peace isnot necessarily a lasting path to peace and ignoring Article 52 VCLT carries its ownrisks.- 3 -

How to End an Illegal War?

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How to End an Illegal War?

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