The writer is an adjunct professor at the Howard University School of Law and holds a Juris Doctorate and LLM specialising in international law. He tweets @warishusain
The basic document that serves as a foundation for international law is the UN Charter, Article 2 of which states that “All member states shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. However, as with all laws, the devil is in the exceptions. A nation is permitted to use force in another country as an exercise of self-defence if it suffers an armed attack. Furthermore, under collective self-defence, if an ally suffers an armed attack, a nation is allowed to use force on its behalf. There is also the exception of humanitarian intervention that allows nations to use force in in order to stop crimes against humanity. Therefore, whenever a superpower engages in an invasion of a country, it uses one of the three above-mentioned exceptions. While these exceptions were meant to be narrow and rarely used, the US spent the last few decades expanding their meaning, and inadvertently, cracked the door open for Russia’s arguments today.
The first of Russia’s arguments is that it has acted to stop the ‘nationalists and terrorists’ who have taken power in Ukraine through a ‘coup’. Leaving aside the farcical nature of this statement, it seems that Russia is using buzzwords like ‘terrorists’ for a legal purpose. The right to preemptively strike individuals, unilaterally deemed ‘terrorists’, has been created by the US to legitimise its Mid-East policy and drone programme; so Russia may likely be trying to use buzzwords that will allow it to rest in the shadows of the international legal fiction set by the US.
Next, Russia argues that it is taking action to protect the human rights of Crimean citizens, and troop deployment is an action required by its humanitarian duty under international human rights law. It sounds like Putin took a line from Bush’s Iraq war speech when he legitimised the war by asserting humanitarian concerns, stating that “Unlike Saddam Hussein, we believe the Iraqi people are deserving and capable of human liberty”. However, humanitarian intervention requires more proof that the Ukrainian regime is committing crimes against humanity, not to mention the requirement that nations seek approval from the Security Council before engaging in such missions.
Finally, Russia has made a collective self-defence argument on behalf of the Crimean people, the majority of whom may self-identify as Russians. This may be bolstered by the fact that the Crimean parliament has shown support for Russia annexing its territory. However, territorial expansion and annexation of sovereign Ukrainian territory is forbidden under international law.
As such, there is a legal difference between the US and Russian actions: while the US may have invaded nations, it has not ‘annexed’ any country as its own. However, it has unconsciously set the international legal precedent for Russia’s other justifications through the expansion of the self-defence-against-terrorists doctrine. Furthermore, its prior use of force in foreign countries legitimised the concept of protecting the human rights of its inhabitants.
International law is under attack when nations violate it while attempting to manipulate its interpretation to meet their political or military objectives. The UN Security Council was supposed to stop such perversions of international law, but due to the veto power of the world’s competing leaders, the Council has been marred by the same political manipulation it is tasked with ending. This does not mean that we should throw international law in the waste basket. Rather, one must always be on guard in realising that nations will no longer tout international law while violating it. Now nations will violate international law while attempting to change its interpretation to legitimise their illegal actions.
Published in The Express Tribune, March 10th, 2014.
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"The basic document that serves as a foundation for international law is the UN Charter, Article 2 "
This is incorrect, or at best, superficial. International law existed before the United Nations. The existence of the U.N. or its charter did not supersede international law, nor require that existing international law receive the validation of the U.N. Nor do all the U.N.'s pronouncements amount to international law.
"As such, there is a legal difference between the US and Russian actions: while the US may have invaded nations, it has not ‘annexed’ any country as its own. However, it has unconsciously set the international legal precedent for Russia’s other justifications through the expansion of the self-defence-against-terrorists doctrine."
The Russians have been expansion-oriented for many centuries and the U.S. has nothing to do with it. Husain ignores a very specific item that applies only to Russia and not to the United States: in its treaty with Russia where Ukraine agreed to give up its nuclear weapons, Russia vowed in exchange that it would never again intervene with its own troops in Ukrainian affairs. This blanket commitment is the most direct part of international law that Russia is violating, the reason why it has tried to keep the identity of its troops deployed in Ukraine obscure. But ignoring this serves the author's greater purpose of finding grounds to use Russia's actions to criminalize those of the United States of America.
Well written article which condemns the invasion based on international law. It is worth pointing out that even Russian-speaking opinion in Crimea is not unanimously in favour of joining Russia, and the Tatars (about 12%) and Ukrainian-speakers (about 28%) are solidly against it. So the Rusian adventure must be condemned. Comparison with western interference in many parts of the world does not make this or western adventures right. We should base our opinions on facts and interrnational law. Thank you Waris Hussain.
This is a good analysis in contrast to opinion article of A. Mooraj yesterday, which was just an anti-Western article disguised as Russian propaganda. No amount of excuses can justify the blatant invasion of Ukraine by the Russians. Author is right on all points from a legal perspective. To call the US actions and Russia's actions parallel is simply so much sophistry. The claim by Russia that they are protecting their citizens is another falsehood. There is no report from the Crimea that Russian Ukrainians are getting harmed. Objective piece by the author who is not looking to score some cheap anti-Us points.