Revisiting the Use of Force Under International Law

Concerns are intensifying about a possible Russian military invasion of Ukraine. In addition to the over 100,000 Russian troops close to the Russian-Ukrainian border, as of earlier this week, Russia begun moving troops to Ukraine’s northern neighbour, Belarus, for joint military exercises. The West remains on edge in response to these Russian manoeuvres, especially in the aftermath of tricky diplomatic engagements between the United States (US) and Russia followed by North Atlantic Treaty Organization (NATO) members and Russia in Geneva and Brussels respectively just over a week ago.

In one sense, the situation on the Russian-Ukrainian border is a tale of the chickens coming home to roost for the US in particular. Ahead of the US invasion of Iraq in 2003, the then Bush Administration championed a new military doctrine of “pre-emptive strike” to defend its national security. In the process, the Administration appeared to be side-stepping long held United Nations (UN) conventions on the use of force under international law.

President George W. Bush argued that given the “nature and type of threat posed by Iraq,” the US had a legal right to use force “in the exercise of its inherent right of self defense, recognized in Article 51 of the UN Charter.” Bush further declared that the US would reserve the right to attack any nation pre-emptively that it views as a threat to its own national security and interests.
However, since the US had not been previously attacked by Iraq, many academics and diplomats countered that America’s understanding of the UN Charter did not provide cover for its pre-emptive use of force in Iraq.

The prohibition against the use of force is the norm in international law, but as with almost everything, there are exceptions. Article 2(4) of the UN Charter provides that a UN member state cannot threaten or use force against the territorial integrity or political independence of another state, or in any way that diverges from the purposes of the UN.

However, the use of force is permitted under certain circumstances. For example, Article 51 of the UN Charter acknowledges self-defence as an exception to the prohibition against the use of force. This provision plainly permits a state to use force in response to an armed attack by another state. Furthermore, though not specified in the UN Charter, what is referred to as customary international law also allows a state to use force if it anticipates that an armed attack on its territory is imminent or inevitable.

Articles 24 and 25 of the UN Charter also permit the UN Security Council to use collective force against a threat to international peace and security. For instance, the Security Council exercised this power during the Iraq invasion of Kuwait in 1990 and subsequently on humanitarian grounds during the disintegration of Yugoslavia in 1992.

Russia has articulated that security interests are influencing its posture on the Ukrainian border, including the threat of an invasion of Ukraine. Specific to Ukraine, Russia appears to be concerned that Ukraine is cosying up to the West, including by seeking to join NATO which would allow the military alliance to further encircle Russia. Therefore, Russia has made it clear that it wants an end to NATO expansion, a rollback of previous expansion, a removal of American nuclear weapons from Europe, and the establishment of a Russian sphere of influence. Russia sees these demands as germane to its security interests.

What is absent from Russia’s public pronouncements is a clear expression of how an invasion of Ukraine would pass the litmus test of international law. Russia does not appear to be under any imminent threat of attack from Ukraine or NATO. There is no actual attack from Ukraine or NATO on Russia. There is also no Security Council edict authorising use of force.

If Russia were to invade Ukraine under current pretexts, there will be no legal basis to do so. An invasion of Ukraine could also further embolden other states to act with impunity in their disagreements with other states, especially in the absence of a credible deterrent to international aggression.

Joel K Richards is a Vincentian national living and working in Europe in the field of international trade and development.
Email: joelkmrichards@gmail.com