On 28 February 2022 former US government official John B. Bellinger III wrote an article for the US Council on Foreign Relations entitled “How Russia’s Invasion of Ukraine Violates International Law” (published online at https://www.cfr.org/article/how-russias-invasion-ukraine-violates-international-law). While John B. Bellinger III is correct to declare that Russia’s use of force against the territorial integrity or political independence of Ukraine is prima facie inconsistent with article 2, paragraph 4, of the Charter of the United Nations. But he is wrong to think that this declaration ends the debate.
To find State responsibility for an internationally wrongful act one needs to identify an act attributable to a State, a legal obligation, and ensure there is no justification for the act. In this case, there is undoubtedly an act attributable to Russia: the use of force against Ukraine’s territory. There is also a legal obligation, as Bellinger point out, the prohibition of the use of force in the UN Charter. But then he makes assumptions about Russia’s potential justifications, ignoring some, assuming the nonexistence of others, and unfortunately sacrificing the integrity of his analysis of international law along the way.
First, he makes a somewhat astounding statement for a lawyer that “Russia’s use of force is justified under Article 51 of the UN Charter has no support in fact or law” without having first shown how this is the case. This is especially unfortunate for a lawyer who served during the Bush administration’s unlawful use force against the people of Afghanistan and Iraq that killed millions of innocent people.
Second, he compounds this bold assumption by stating that “[e]ven if Russia could show that Ukraine had committed or planned to commit attacks on Russians in the Ukrainian regions of Donetsk and Luhansk, Article 51 would not permit an action in collective self-defense, because Donetsk and Luhansk are not UN member states.” Surely, Bellinger does not think that the right to self-defense only applies to Member States of the United Nations. While Bellinger might want to forget the International Court of Justice’s decision in the Nicaragua Case, the U.S. having been on the losing side, the Court was pretty explicit in holding that the right to self-defense is one that exists as an inherent right under customary international law as well as under the UN Charter. This understanding is supported by the Charter itself in its use of the word “inherent” to modify self-defense. In any event, it is unusual to see a former U.S. government lawyer arguing that there is no right to self-defense under customary international law, as that would make the article 51 requirement of an armed attack having first occurred mandatory. Does Bellinger really think that the September 11, 2001 crimes by non-State actors that killed about 3,000 Americans where greater than the use of force by Ukraine against the people of Donetsk and Luhansk that killed an estimated 16,000 people since 2014?
Third, and compounding the second error of logic, is Bellinger’s assumption that Donetsk and Luhansk “do not even qualify as states under international law.” The often-cited criteria for a statehood is stated in the Montevideo Convention on the Rights and Duties of States from 1933. In other words a State must have a defined territory, a permanent population, a government, and the capability of entering into relations with other States. Rather than review these criteria Bellinger merely assumes they do not exist. However, even a cursory examination shows that Donetsk and Luhansk have defined territories, permanent populations and governments. Moreover, the fact that Russia has recognized them—something it is entitled to do as a sovereign State—is evidence of their capability to enter entering into relations with other States. While a detailed analysis of each criteria in relations to Donetsk and Luhansk is required, it seems Bellinger is acting hastily in his assumptions that run counter to the prima facie evidence that is available. If Donetsk and Luhansk are independent States, then they are entitled to request Russia’s collective self-defense if Ukraine’s use of force against them constitutes an armed attack.
Fourth, Bellinger’s faulty assumptions, even if correct, may not foreclose a justification of Russia’s use of force to prevent or end the crime of genocide. The crime of genocide is very likely a norm of jus cogens, indeed this is what the European Court of Human Rights recognized in its June 2013 decision in Stichting Mothers of Srebrenica and Others v. The Netherlands and the International Court of Justice’s 2007 decision in Bosnia and Herzegovina v. Serbia and Montenegro. But has the obligation to act to end and/or prevent genocide also achieved the status of jus cogens? According to prominent British jurist Dapo Akande and Sangeeta Shah writing in The European Journal of International Law (Vol. 21 no. 4, p. 815, 2011) more than a decade ago it has. This view is increasingly shared among high qualified jurists but would have to be proven by any State relying on this justification. So too would the fact that the Ukraine’s killing of thousands of persons in Donetsk and Luhansk amounts to genocide or a threat to commit genocide. Bellinger is correct to point out the issue of intent. Genocide is one of the rare international obligations requiring proof of intent. Such intent, however, can be derived from a practice over several years. If Russia were acting to prevent or end genocide in Donetsk and Luhansk, this may justify a necessary and proportionate use of force. At least, this justification requires some consideration and not merely bare unsupported assumptions to overcome it.
Fifth, Bellinger’s statement that “[i]n general, international law requires respect for the territorial integrity of states and does not permit regions of states to declare independence and secede” is probably correct under the existing international law principle of uti posseditis. But Bellinger fails to note that principle is not without exceptions and its application must be weighed against the rights of new States to exist. High qualified publicist Malcolm Shaw has explained its advantages and disadvantages of uti possidetis in some detail in his article entitled “The Heritage of States: The Principle of Uti Possidetis Juris Today” (British Yearbook of International Law, Vol. 67, pp. 75-154, 1996). More critical writers like Rashwet Shrinkhal at the Central University of Jharkhand in Ranchi, India, in his article entitled “Indigenous sovereignty” and right to self-determination in international law: a critical appraisal” in AlterNative (Vol. 17(1) 71-82, 2021) has raised questions about the principle of uti posseditis and its application to deny indigenous peoples self-determination (77-78). Indeed, the validity, and even morality, of the principle of uti posseditis stands on shaky ground. It is a Roman concept that evolved from an imperial edict to a post-colonial principle of international law that is used to justify the boundaries established by colonial rulers, mainly in Africa and Asia, and the Western Euro-centric understanding of international law. While it fits well into a hegemonial understanding of the world, it is fits less well into a world respecting peoples’ rights to self-determination.
Sixth, while Bellinger admits that “[s]ome international law experts believe that so-called remedial secession is permissible as a last resort when a people have suffered grave human rights abuses at the hands of the state government and have been unable to exercise internal self-determination,” he then summarily dismisses this claim for Donetsk and Luhansk as “a minority view” that “few (if any) lawyers are likely to argue.” Indeed, this is exactly what Russia has stated and what I, among other lawyers, has said needs to be thoroughly examined, without—unlike Bellinger’s examination—a starting point of prejudice.
Seventh, Bellinger ignores justifications that Russia has explicitly raised in Putin’s Speech of 21 February 2022 (see C-SPAN link below). Putin was quite clear in outlining the United States and NATO’s actions as constituting threats to Russia’s very existence. Putin went to great pains in his speech to point out how Russia is subject to an “immediate” threat to its very existence by the deployment of weapons by NATO in surrounding States and NATO’s attempts to do so in the Ukraine. He pointed out the United States’ unilateral withdrawal from the Intermediate-Range Nuclear Forces had heightened the threat to Russia.
Putin stated three clear conditions for Russia security. First, NATO not expanding further East into Ukraine. Second, no deployment of weapons on Russia’s borders. And third, respect for the Founding Act on Mutual Relations, Cooperation and Security Between NATO and The Russian Federation Signed in Paris, France signed on 27 May 1997. Whether NATO and the United States have honored their commitments is open to debate. Certainly, NATO was aware that its continued expansion into Eastern Europe was viewed as a threat to Russia. Even cogent American observers of US-Russian relations like John Mearsheimer told the US and NATO political establishment this, but so did Russia especially in the days leading up to the current armed conflict. Did the US and NAO threats amount to an armed attack? That is a matter to be determined by a thorough investigation of the facts.
Similarly, Putin stated that Russia is acting to protect the sovereignty of Donetsk and Luhansk. If this is can be established that the self-determination of the people of Donetsk and Luhansk was under attack to the extent that their self-determination was being denied, then again Russia may have a legitimate justification for the use of force. While again a thorough investigation of the facts is necessary, ignoring this possible justification is neither wise nor possible under international law.
While the rest of Bellinger’s article is merely speculation about Russia’s intentions, as well as description of what action the international community has or could take, even this is imbued with bias and misconstrued facts.
Again, without much analysis he merely suggests that Russia may be seeking to annex Donetsk and Luhansk, but then seems to undermine his own suggestion by pointing that Russia did not annex South Ossetia and Abkhazia after it recognized these republics. He does not mention the fact that Russian President Vladmir Putin has publicly stated it does not intend to annex Donetsk and Luhansk, but to recognize them as independent States. Americans can listen to the one-hour speech on C-SPAN (https://www.c-span.org/video/?518097-2/russian-president-putin-recognizes-independence-donetsk-luhansk-ukraines-donbas-region), but they are out of luck if they want to read the original text from the Kremlin’s website, which the United States is blocking.
It is noteworthy that the United States, which has always touted the freedom of press based on the First Amendment of the Constitution, has now blocked news coming from Russia. Apparently, the United States government no longer trusts the American people to make up their own mind. Getting spoon feed the flawed views of commentators like Bellinger appears to have replaced the freedom of the press. Neither Iraq nor Afghanistan blocked US senders while they were being subjected to even more disproportionate unlawful uses of force.
And finally, while Bellinger is correct in pointing out that many States have criticized Russia, he ignores the fact that it is likely that more than half the people in the world have shown themselves to be at least sympathetic to Russia’s actions considering that India, China, and the overwhelming majority of people in Russia, as well as many in Ukraine’s eastern regions have supported it.
By pointing out the bending of international law and facts by Bellinger, it is not my intention to support the use of force or to justify it. My intention is instead to encourage the application of international law to all States in a just, consistent, and equal manner. When the United States and its NATO allies fail to abide by the law with impunity and then criticize others for acting the same way, this damages respect for the rule of international law. To repair this damage the United States and its NATO allies must admit the errors of their past and correct them.
When Iraqi President Saddam Hussein was being subjected to victors’ justice in Iraq after his country had been unlawfully invaded and an estimated more than one million of his country’s citizens were killed, he said I don’t object to international justice, “I will voluntarily submit to trial with Tony Blair and George Bush in the dock next to me.” We need to have the courage to submit our own alleged international criminals to trial if we want to criticize others. We need to examine our own actions that contributed to Russia actions in light of international law, if we want to criticize Russia’s actions using this law.
Bellinger’s contribution evidences a logic locked in outdated views of American hegemony and a Cold War belief that only the United States understanding of the law counts. In today’s world the United States views are becoming more inter pares and less controlling. This is probably good for a world aspiring to principles of equality and equity.
Curtis F.J. Doebbler is Research Professor of Law, Department of Law, University of Makeni, Sierra Leone; visiting professor of law, Webster University, Geneva, Switzerland; and The Law Office of Dr. Curtis FJ Doebbler, Washington, D.C., USA. The author can be reached at [email protected].
