Roscini, Marco

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Russia Has Not Breached the JusContra Bellum in 2022; It Did in 2014Marco Roscini 2022-03-07T09:57:27There is hardly any doubt that the Russian Federation’s invasion of Ukraine startedon 24 February 2022 is a blatant violation of international law. According to the newsarriving from Ukraine, it appears that Russian forces might have committed warcrimes, which has resulted in the International Criminal Court (ICC)’s Prosecutorstarting an investigation on the situation. As to the jus contra bellum codified in theUN Charter, commentaries have so far focused on the legal arguments offered byRussia to justify the recognition of the independence of the People’s Republics ofDonetsk and Luhansk and the subsequent use of force in their support (see forinstance here, here, and here). But is this really the correct approach?The 2014 Occupation of CrimeaWhat commentators have not taken into account is that Russia already used armedforce in and against Ukraine back in 2014 and has continued to do so since then.Following the Maidan Revolution, which overthrew Ukraine’s pro-Russian PresidentYanukovych, unmarked forces joined local militias and took over the AutonomousRepublic of Crimea and Sevastopol: the peninsula was eventually annexed into theRussian Federation after a referendum, which was declared invalid and without legaleffects by the UN General Assembly. The majority of the international communityhave considered the annexation illegal, with the General Assembly calling upon themember states not to recognize changes to the territorial integrity of Ukraine. Froman international law perspective, therefore, the status of Crimea is and remains thatof an occupied territory.Under the Definition of Aggression adopted by the General Assembly in 1974,‘any military occupation, however temporary, … or any annexation by theuse of force of the territory of another State or part thereof’as well as‘the use of armed forces of one State which are within the territory ofanother State with the agreement of the receiving State, in contraventionof the conditions provided for in the agreement or any extension of theirpresence in such territory beyond the termination of the agreement’are acts of aggression. Russia’s unlawful use of force against Ukraine, therefore,started in 2014 with the occupation of Crimea and has not stopped since then: the2022 invasion is not a matryoshka-like aggression within an aggression, but thedramatic escalation of ongoing hostilities between the two countries.The Military Support to Insurgents in Donbass- 1 -Although until last week it denied any direct intervention in support of the armedgroups in Ukraine’s Donbass region and claimed that only volunteers were involved,Russia has also been supporting the secessionist republics of Donetsk andLuhansk with weapons and other military assistance (see for example here, pp.122-7). Ukraine called it an open military aggression and reserved ‘its right to act inaccordance with Article 51 of the Charter of the United Nations’. Many states havecriticized Russia for arming, equipping and training the separatists in violation ofinternational law (see the Security Council debates here, here, and here). Indeed,as readers will recall, the International Court of Justice (ICJ) found in Nicaraguav. USA (Merits) that arming and training foreign insurgents constitutes a use offorce in violation of Article 2(4) of the San Francisco Charter and of its customarycounterpart. Applying the overall control standard developed by the InternationalTribunal for the Former Yugoslavia (ICTY) for the qualification of armed conflicts, itis equally clear that, if Russia had ‘a role in organising, coordinating or planning themilitary actions of the military group, in addition to financing, training and equippingor providing operational support’ to the Donbass separatists, it would have beenengaged in an international armed conflict with Ukraine since 2014.No Need to Ground the Illegality of the 2022 Invasion on Jus Contra BellumConsiderationsWhat does the above mean for the 2022 Russian invasion? It is well-known thatthe jus contra bellum indicates when a state can use armed force against another:this can lawfully occur only in case of individual or collective self-defence or withthe authorisation of the UN Security Council. As has been demonstrated (see forinstance here), neither Russia’s occupation of Crimea nor its support of insurgentsin Donbass can be justified on these two exceptions to the prohibition of the useof force codified in Article 2(4), or on any other for that matter. If so, it makes littlelegal sense to assess again the legality of the 2022 invasion from a jus contra bellumperspective, as the unlawful use of force – and an international armed conflict –already started in 2014: to borrow Judge Weeramantry’s words, in 2022 the use offorce door was already open. Any post-2014 military operations between Ukraineand Russia, therefore, must be scrutinised through the lenses of internationalhumanitarian law, which regulates how armed force may be used. To be abundantlyclear, this is not to say that the current Russian invasion is lawful under the UNCharter, quite the opposite: but the violation of Article 2(4) was committed in 2014,not 2022, and continues to this day. The main consequence of this is that, even ifRussia had valid arguments to use force against Ukraine in 2022 (and it does not,in spite of Putin’s claims), the invasion would still be a violation of Article 2(4) as it isnothing but the continuation of the 2014 unlawful use of force.The Jus Contra Bellum Remains Relevant for Ukraine’s Right of Self-DefenceThe jus contra bellum, however, is not completely irrelevant in the 2022 crisis: itplays a role not in the determination of the illegality of Russia’s invasion but withregard to Ukraine’s right of self-defence. To explain, it was not entirely certainthatRussia’s virtually unopposed occupation of Crimea and the indirect support forthe Donbass separatists did cross the threshold of a serious use of armed force,that is, that of an armed attack which would trigger Ukraine’s right to individual and- 2 -collective self-defence under Article 51 of the Charter and customary internationallaw. In relation to the arming and training of insurgents, in particular, the ICJ heldthat, although they constitute an unlawful use of force, they can never amount to anarmed attack for the purposes of the exercise of self-defence. It is more difficult notto qualify the illegal occupation of Crimea as an armed attack against Ukraine even ifno major hostilities erupted in that context: as already said, the General Assembly’sDefinition of Aggression, which can be considered an authoritative interpretation ofthe UN Charter’s rules on the use of force, considers cases of unlawful occupationand annexation as acts of aggression.But in any case, this debate has become irrelevant: it is evident to everyone that,even if (and it is a big ‘if’) it was not already, Russia’s use of force against Ukrainehas now crossed the armed attack threshold. As a result, there cannot be any doubtthat Ukraine can exercise – and indeed is exercising – its right of individual self-defence and that it could request other states to assist in collective self-defence. Thesupply of arms by several countries to the Ukrainian government can be justified onthis legal basis as, being a use of force, it could not constitute a lawful ‘collective’countermeasure (Article 50(1)(a) of the International Law Commission’s Articleson Responsibility of States for Internationally Wrongful Acts). The 2022 invasionalso serves as a measure of the necessity and proportionality of this and any otherdefensive responses against Russia.- 3 -

Russia Has Not Breached the Jus Contra Bellum in 2022: It Did in 2014

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Russia Has Not Breached the Jus Contra Bellum in 2022: It Did in 2014

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