Russia, Ukraine, and the UN Charter

Any military offensive against Ukraine by Russia would be a clear breach of the UN Charter, which states that ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state’.

When, on 2 August 1990 Iraqi forces invaded Kuwait, the Security Council immediately and almost unanimously (Yemen abstained) passed a resolution condemning the invasion as ‘a breach of international peace and security.’  We know that a comparable breach of the Charter by Russia in the coming days or weeks will not lead to the passage of a comparable resolution. Whatever the numbers supporting a tough resolution, as a permanent member of the Security Council Russia can veto it. We know this will happen because of what took place last time Russia violated Ukrainian sovereignty. The annexation of Crimea was condemned in March 2014 by 13 members of the Council, with China abstaining. But Russia voted against and that was enough for the resolution to fail. If a new resolution condemning Russian action comes before the Council the only interesting question will be whether China abstains again. 

So, even though an invasion would constitute aggression pure and simple, directed against a government that was not actually doing Russia any harm, Russia could avoid being censored by the international body. Tough realists would say Vladimir Putin would not care about how a violation of international law was viewed by the wider international community because this is all about a raw assertion of power. He certainly is not a strong believed in the rule of law. In his dealing with his domestic opponents he had shown law as something to be manipulated for political advantage rather than honoured. Yet, perhaps as part of the tribute vice pays to virtue, he always offers legal justifications when he takes tough action.  And there are always a number of justifications available, many that have also been used by Western powers – self-defence, treaty violations, humanitarian distress, and the need for peacekeepers when a civil war is raging.

He has often criticised Western powers for breaking their own rules, for example over Kosovo in 1999 and Iraq in 2003. When he took Crimea, Putin went to great lengths to claim that he was following an act of self-determination by the Crimean people, using as evidence a hastily arranged referendum on annexation which was unsurprisingly passed by a huge majority. Some of those around him thought that they might pull off the same trick in eastern Ukraine, but it was clear this time that the popular support was uncertain and, anyway, Putin wanted the provinces of Donetsk and Luhansk to stay in Ukraine and cause the government in Kyiv trouble. When the separatist leaders organised their own referendums to show support for unification with Russia Putin gave them no encouragement.  

In addition, Putin denied that Russian forces had been employed at all in Ukraine, only later admitting that this was not quite the case. He did send in regular units in the summer of 2014 when he feared that the groups Russia had backed might be defeated by Ukrainian forces. Even then there were flimsy stories, of the sort that Russian spokespersons habitually offer with a smirk, that the relevant troops (some of whom were taken prisoners) were volunteers using up their vacation time for this noble cause.  

The contrast with the military intervention in Syria that began in 2015 is striking. In this case Russia could claim that it was acting in support of an established government. Putin did not bother with dissembling. Russian support for Assad was open (and effective). 

If armoured battalions now invade Ukraine across an international border there could be no plausible – or implausible – deniability, no pretence that this was an action being conducted by ‘little green men’ or ‘vacationers’ or any of the other euphemisms used to described Russians engaged in the earlier operations. Nor could Russia use the precedents from Soviet interventions in countries that looked like they might defect - for example Czechoslovakia in 1968 or Afghanistan in 1980. In these cases, tame politicians were found to issue the invitation (although this tended to come after the operations had started). That is not an option in this case. 

Only one option might work for Putin as it worked in the past – and that would be push into the area in and around Donetsk and Luhansk - the current enclaves in the east. There have been dire, lurid warnings emanating from the Kremlin about terrible things happening to Russian speakers in this area. The Americans have reported preparations for fabricated provocations that could be used to justify military action (this is what was done with Chechnya in 1999 in moves which were critical to Putin’s ascent to power in Moscow). Communists in the Duma have introduced legislation to recognise the two enclaves as independent states, which if taken up by the government would represent a shift in how Moscow views their situation and the end of the stalled Minsk peace process. A sharp focus on Donetsk and Luhansk doesn’t create the new security order Putin has demanded, but it could bring a tangible gain and while, still in clear breach of the Charter, as was the case in 2014, he might construct an argument, however dubious, to demonstrate that this was not the case. 

There has been interminable speculation about what Russia really intends to do with all the forces it has moved close to Ukraine. We might learn more tomorrow when Secretary of State Anthony Blinken meets his Russian counterpart Sergei Lavrov. The Russians have said a lot about what they want but precious little about how they intend to get it, leaving it to our darker imaginations to imagine what they might do with all those troops massed near the Ukrainian border.

It is easy to be cynical about the value of international law. Yet, should his forces actually cross the border, for a major or minor intervention, Putin will not relish being accused of a stark and unambiguous breach of the UN Charter, and will seek to concoct a legal story to refute such accusations. Just because we do not expect the Charter’s prohibition of aggression to restrain Putin does not mean that we should concede the point.