An opinion/concept note by The Oyemaja Institute of Law
Photo Credit: Getty Images.
Normally, conversations about war and killings are not exactly perfect for dinner or casual conversations but then with the recent trend of "Putin memes" flying about, it is so easy to get lost in the midst of all the fun and laughter and forget the gravity of what we are actually dealing with.
The ongoing war between Ukraine and Russia has a lot of implications on the world and on diplomatic relations. There have also been concerns raised about the possibility of escalation. Are these legitimate concerns?
Before we attempt to answer these questions, let us begin by attempting a proper dissection of issues that will help us understand what exactly is going on.
Ukraine Invasion
The event that happened on the 24th of February, 2022 was like a spark that lit the flames. But then, sparks don't just burst into flames, at least not without the presence of already existing fuel.
The fuel in this case was a chain of events and unresolved issues that transpired between Ukraine and Russia over the years.
The Nexus: Russia and Ukraine
Russia and Ukraine have quite a few things in common. Both states share a historical background (history has it that both states were a part of the then Soviet Union) and a border. Similarly, a sizable number of Russian citizens are also based in Ukraine. In fact, about one- third of Ukraine's population speak Russian.
In his pre - dawn address before the invasion, Putin declared that Russia could no longer feel "safe, develop and exist" due to constant threat from "modern Ukraine" and by this, he was making reference to Ukraine's attempt at adopting a pro-western foreign policy.
A state's foreign policy refers to self interest strategies that are adopted by a state to pursue its interests while relating with other states. A state has the right to form their own foreign policy. Usually the foreign policy of a state reflects its historical background. Nigeria for instance has a policy that reflects our British Colonial History.
Given the historical background of Ukraine, its foreign policies have been pro- Russian. However, since 2014, Ukraine has (much to Russia's horror) made known its intentions to be a part of the National Atlantic Treaty Organization (NATO) (an organization formed initially to oppose the expansion of the then Soviet Union) .
Russia has been in opposition to this because of its implications to Russia. Firstly, it will constitute expansion of NATO to the east and subsequently bring NATO closer to Russia.
After Putin's invasion, he also sought to justify his actions by claiming that his goal was to protect people in Ukraine who had been subjected to genocide and finally, he claimed that he was trying to de- Nazify Ukraine.
Russia's Invasion: Justified or not?
While virtually everyone agrees that under normal circumstances, it is inappropriate to interfere in a sovereign state's affairs the way Russia has, Putin's argument is that his actions are justified and therefore this should be treated as an exception.
In other words, International Law has a standard and Putin is convinced that his actions are justified because in his opinion, they fall under an exception to the general rule.
How convincing are his arguments?
The position of International Law
Russia’s invasion of Ukraine violates a number of International statutes. For instance, Article 2(4) of the United Nations Charter provides that UN member states to refrain from the “use of force against the territorial integrity or political independence of any state.”
Instead, the UN Charter enjoins member states to “settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered”
While Article 51 of the United Nations Charter allows a state to engage in self defense even if it involves the use of military force, it is is however limited in application as it allows the use of military force as a response to an attack by another state only until the Security Council has taken steps necessary to deal with the problem.
Another equally important International Law doctrine is the Doctrine of Sovereignty. The UN Charter equally states that the United Nations is “based on the principle of sovereign equality of all its Members.”
While states are expected to protect their sovereignty to the maximum extent possible, countries are not expected to act with complete disregard for repercussions on other states. States are bound by certain rules of International Law.
In relation to the secession attempt by Donetsk and Luhansk people's republic (two states seeking to secede from Ukraine), under International Law, regions of a state are not allowed to declare independence and secede except as a last resort where they have suffered grave human right abuses.
From everything we have said so far, the position of International Law seems straightforward. Every state is sovereign, the use of force is limited to certain circumstances and secession is only recognised in some circumstances.
While these principles seem pretty straightforward on the surface, it gets really complicated in practice. It will therefore be naive to immediately conclude that Russia breached Ukraine's right to sovereignty and subsequently its right to independently determine its own foreign policy without first examining some key issues.
Photo Credit: Vox
War and Interference
As stated earlier, a state (in some circumstances) will be justified in interfering in the affairs of another state. These situations often present an exception to the principle of sovereignty which is in actual fact not absolute but is instead guided by key guidelines and principles.
To determine whether this inference is indeed justified or not we need to distinguish between a just and an unjust war.
Just War v Unjust War
As a rule of thumb: "war should be avoided at all cost". There are however instances that war will be termed justified. How do we tell a justified war from an unjustified one?
Jus ad bellum (just cause of war) and jus in bello (just conduct of war).
In other words, a just war must be fought for the right reasons and the parties should maintain a particular standard of behavior.
Jus ad bello: Just cause of war
a) Legitimate authority:
Was the war declared by a legitimate sovereign? In times past, this was often determined by whether or not the war was declared by the highest secular authority in a community. However, following the provision of the United Nations charter which clearly prohibits the use of force except in self defense, as such many scholars have opined that only the implication is that only the United Nation can hold the legitimate authority to declare war.
b) Self Defense
The only motive traditionally accepted for a just war is self defense which is ultimately aimed at establishing or restoring peace and bringing about justice.
Was Russia's attack a form of self defense?
(i) A response to perceived threat:
Putin has claimed that his actions were in response to a perceived threat posed by Ukraine to Russian safety and security should Ukraine be granted membership of NATO. The potential threat posed by NATO is premised on the history of NATO and the Soviet Union
Strong or not
This claim is however not strong enough as there has been no assurances or indication of NATO's willingness to a MAP (Membership Action Plan) to Ukraine. Without a MAP, Ukraine cannot be a member of NATO
(ii) Reclaiming Crimea
Remember Crimea? If you do not know Crimea, Crimea is a former Ukrainian territory that was illegally seized by Russia. Russia has stated that its attack was to prevent Ukraine from forcefully repossessing Crimea.
Strong or not
Ukraine has however countered this point and denied having any intention to violently take back Crimea.
(iii) Recognition of State
Under International Law, recognition of state involves the acceptance of the existence position, status of a state as an entity possessing legal and political legitimacy over a defined territory that it controls. It is usually based on a state's interests (particularly political interests).
It is therefore not surprising that Russia sought to twist the narrative to its own advantage by recognising the self acclaimed Luhansk People's Republic and Donetsk People’s Republic shortly before its attack on Ukraine thereby attempting to capitalize on the ongoing conflict in Ukraine that started in 2014 and use the situation to their advantage.
Russia therefore has claimed to have been acting in the interest of its new allies by protecting them from "genocide" by Ukraine.
Strong or not?
That narrative is pretty interesting, in fact, I see this as a really smart move (I'll give Russia that much). However, let us not forget that accusations of genocide (being a war crime) must be backed up by evidence.
The definition of Genocide as a war crime emphasises that the killing should be deliberate and systematic, hence this distinguishes it from tragic but completely unintended killings (as appears to have been the case of the 3,000 civilians from both sides who have lost their lives in the conflict especially since there is no concrete evidence to prove otherwise).
(iv) Pro- Nazi government
Putin has also sought to go with an humanitarian narrative where he portrays himself as a "saviour" seeking to rescue Ukraine from what he terms a pro-Nazi government.
The term Nazi brings to mind Adolf Hitler and his Jewish extermination agenda. Putin referenced the presence of such a group in the Ukrainian military forces. In his narrative, he, like any typical hero in a story, swoops in to save the day ( or in this case De-nazify Ukraine).
Strong or not?
The Azok ( the alleged pro- Nazist military group harboring) is an all volunteer "infantry" unit in Ukraine with about 900 members. A look at history will reveal that this group, when it was formed in 2014 in fact had a touch of Neo- Nazism in it ( it was formed as a volunteer group in May 2014 out of two groups, namely, the ultra-nationalist Patriot of Ukraine gang and the neo-Nazi Social National Assembly (SNA) group) and was officially integrated into the National Guard of Ukraine.
Azoz has since then ceased to have Nazi idealogies. The initial problem with Putin's "deNazification" theory is that the term itself had been taken out of context. The term initially described a systematic process of purging Germany of its nazist ideology which was achieved mainly by de- institutionalization and investigation.
In fact, Putin seems more threatened by the democratic government of Ukraine than any pro Nazi undertone left in Ukraine. Putin therefore seeks to leverage the presence of a few Neo- Nazist oriented individuals in Ukraine to justify his actions.
c) Last Resort
Violence in actual fact is never the answer, therefore for a country to eventually settle for violence, it is important to establish that they explored other diplomatic means of settlement of disputes such as negotiation, mediation, good office, conciliation, fact finding activities, judicial settlement, arbitration etc. A diplomatic solution would mean a compromise on the part of both sides. However conflict is only permitted when all other solutions and options fail.
Are there diplomatic solutions that would have worked had Russia not resorted to war?
While Putin claimed to be willing to negotiate before the invasion, Russia made no real effort at reconciliation as they refused to attend joint sessions on the matter. Similarly, security analysts have raised arguments that the draft agreement presented to NATO and the United States was in fact deliberately targeted at eventual rejection by them. Despite this, NATO and the US expressed their desire to engage in talks with Russia.
Ukraine on the other hand was, up until the day leading up the war, calling for diplomatic conflict resolution. Similarly, Ukraine had not joined NATO yet so there was still enough time for diplomacy to work.
Jus in bello:Just conducts in war
The principles of jus in bello is encapsulated in the principles of proportionality and discrimination. Proportionality implies that the amount of force used must be proportionate to threat.
The principle of discrimination on the other hand implies that civilians are not to be made an intentional target of war.
Sanctions
The west has imposed a number of sanctions on Russia. Examples of these sanctions include:
Freezing of Putin's foreign assets as well as exclusion of a number of Russian banks from the Swift International payments system.
Many multinational firms like Zara, Paypal and Samsung have ceased operations in Russia.
Other financial and economic measures have also been imposed on Russia.
Russia has been banned from using EU (European Union) airspace.
In addition to financial sanctions imposed on Russia by the United States and other countries, Russia might face widespread condemnation and isolation in International Bodies.
The Council of Europe suspended Russia from participating in its Committee of Ministers and Parliamentary Assembly.
Similarly, the United Nation Security Council in a binding resolution, voted condemning the actions of Russia and demanding that Russia withdraw forces from Ukraine. This decision was however vetoed by Russia (this is a right exclusively given to members of the Security Council). This however did not stop the security Council from voting on a non binding resolution, in line with UN General Assembly Resolution 377(V) of 1950, calling on the United Nations General Assembly to have an emergency special session to consider Russia’s actions and adopt a resolution as it sees fit.
Should the General Assembly view Russia's actions as a threat to the territorial integrity, political Independence and the sovereignty of Russia, the General Assembly could mandate an investigation by the United Nations into Russia's actions and encourage member States to impose appropriate sanctions on Russia or even recommend the expulsion of Russia from certain United Nations Councils.
It should however be noted that a few government and law experts actually believe that the actions of Russia are permissible.
Is there a possibility of prosecution by the International Criminal Court (ICC) for war crimes possibly committed during the war?
The International Criminal Court (ICC) is a permanent international court charged with the responsibility of investigating, charging and putting people suspected for the commission of genocide, crimes against humanity, and war crimes committed after July 1, 2002.
The jurisdiction of the International Criminal Court is however limited to the following instances:
When crimes occur in the territory of a country that is a party to the ICC treaty,
When the person accused of the crimes is a citizen of a country that is a party to the ICC treaty,
When a country that is not a party to the ICC treaty accepts the authority of the court for the crimes in question by submitting a formal declaration to the court,
When the United Nations Security Council refers the situation to the ICC prosecutor.
The Rome Statute that established the International Criminal Court was signed by both Russia and Ukraine, however, they have not rectified it, hence they are not bound by it ordinarily.
Ukraine has however accepted ICC’s jurisdiction for offenses that have occurred on its territory since 2013 under Article 12(3) of the Statute over crimes against humanity, war crimes and genocide in Ukraine, hence the third principle of ICC jurisdiction will apply meaning that ICC has jurisdiction over this particular issue.
Furthermore, the Complementary Principle as contained in Article 17 of the Rome Statute may also be applied to justify ICC exercising jurisdiction over war crimes committed provided it is established that Russia is "unwilling" to investigate and prosecute or Ukraine is "unable to investigate or prosecute.
ICC's ongoing intervention
The chief prosecutor of the ICC has announced the commencement of an investigation into President Putin over possible war crimes committed.
Russia has also filed a claim against Russia alleging misinterpretation of the Genocide Convention to justify the Ukranian Invasion in addition to two other pending claims filed by Ukraine in 2017 relating to Russia’s actions in Crimea and eastern Ukraine.
Is there a possibility that Putin can be subjected to prosecution by the ICC?
Under International law, commanders and civilian leaders may be prosecuted for war crimes if they knew or should have known about the commission of war crimes but did nothing to prevent it.
The real struggle will however be getting Putin physically in front of the ICC as they do not conduct trials in absentia. Being a serving president there is a small chance of prosecution as he is likely to stay away from areas where warrants have been issued for his arrest.
World War III or not?
World war I was the resultant effect of the murder of Archduke Franz Ferdinand of Austria which set in a motion a series of events that snowballed into a four year long war (1914 to 1918).
World War II, which turned out to be the largest war in history, was initiated by Adolf Hitler's attempt to take over the world. His pact with the Soviet Union and other series of events eventually escalated into a global war.
Many have expressed the possibility of this Ukraine- Russian conflict eventually giving way to a World War III should certain states decide to intervene. With the progression of events, many have posited that World War III has even already started.
No doubt, World War III will be devastating and nuclear. There is also a looming disaster if US and other NATO allies are dragged into the fight. The surest way this can occur is if Russia accidentally launches an attack on any NATO Member states. NATO states have a mutual obligation to defend one another.
There are also a lot of mundane occurrences that can eventually escalate into war if taken up and a recent example is Russia's multiple violation of Swedish airspace.
There is however a ray of hope in the fact that up until this point, other nations have decided to hold back from intervening and result in sending weapons to Ukraine to enable them boost their self defense as opposed to direct approaches such as NATO protecting Ukrainian airspace by enforcing a no fly zone, thereby indicating willingness to shoot down Russian military aircraft which will surely result in war.
Pick a side: Ukraine or Russia
Many have sided with Ukraine and have termed this war unjust while outrightly condemning Putin's actions. Others have taken Putin's side and have reasoned that his concerns are indeed legitimate and his actions are justifiable.
However, the truth remains that many do not realize that the world, at this point, is walking on a tightrope and one wrong move from either side of the conflict can spark a devastating war that will trump the horrors of the previous world war.
Whose side do we take then?
The side of peace and diplomacy. This will however come at a cost as one or preferably both sides will have to make compromises. For Ukraine, this would probably imply giving up on membership of NATO and choosing to remain neutral without tilting towards Russia or the West.
Russia on the other hand may have to sign a pact or an agreement to respect Ukrainian sovereignty and desist from Interference with Ukrainian territory. Russia will also have to withdraw its troops from Ukraine.
Many have expressed concerns that Ukraine will have to make much more compromises than Russia but then, truth be told, peace comes at a cost. Furthermore, the world has a lot to gain if it continues to live in peace.
Yours in opinion,
Oyemaja Law.
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