UPDATED: According to the U.N. Charter Russia’s military action was illegal, but the Kosovo case raises questions about Donbass’ right to independence, writes Joe Lauria.
U.N. Security Council votes on a draft resolution condemning “Russia’s aggression against Ukraine” on Feb. 25, 2022. (U.N. Photo/Mark Garten)
By Joe Lauria
Special to Consortium News
In his impassioned address to the United Nations Security Council on Wednesday, in which he appealed to the council’s humanity to bring about a ceasefire in Ukraine, British rock legend Roger Waters called Russia’s military action “illegal.”
That has gotten some attention and raised the question again of the legality of the military operation according to international law. As is often the case with law, the question is not as simple as it might seem.
What the Charter Says
The U.N. Charter has something to say about the legal use of military force. It allows it in two cases: when it is authorized by the Security Council and when it is legitimately used in self-defense. Council authorization for force is contained in Chapter VII, Article 42:
“Should the Security Council consider that measures provided for in Article 41 [economic sanctions] would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”
The second instance allowing armed force is in self-defense, explained in Chapter VII, Article 51:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
So, on these narrow legal grounds, the U.N. Charter only permits the use of force after authorization by the Security Council or in self defense by a “member state.” Russia entered the eight-year Ukrainian civil war on Feb. 24, 2022 to defend against attacks against the majority-ethnic Russian oblasts of Donetsk and Luhansk, which had declared independence from Ukraine in 2014.
Russia only recognized their independence on Feb. 21, 2022, three days before its intervention. It intervened without authorization from the Security Council, where the U.S., Britain and probably France would have vetoed it.
As the self-defense article pertains only to U.N. member states, it could not apply to Donetsk and Luhansk. Russia is a member state but the article says “if an armed attack occurs” against it, and there was at the time no armed attack against Russia.
So according to the U.N. Charter, Russia’s military intervention was not legally authorized.
Montevideo Convention
However, states are not prohibited by the Charter to request the presence of foreign forces on their territory. There is no language in the Charter about it. Officially inviting foreign forces onto one’s territory would not be considered an illegal occupation. Article 42 of the 1907 Hague Convention says:
“Territory is considered occupied when it is actually placed under the authority of the hostile army.”
The Russian army is certainly not seen as hostile in Donetsk and Luhansk. The murkiness of the legal issue arises then on the question of whether Donetsk and Luhansk were independent states in February of last year — states that could invite foreign forces onto its territory — or were they at the time still part of Ukraine? (Ukraine and the West argue they still are today. The republics passed referenda in September 2022 to join the Russian Federation.)
So what makes an independent state? According to the Montevideo Convention of 1933, “The state as a person of international law should possess the following qualifications:
a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with the other states.”
This is key: Article 3 of the convention adds, “The political existence of the state is independent of recognition by the other states.” That means no other other country has to recognize their independence if the above criteria are met.
According to Montevideo, Donetsk and Luhansk met the four requirements of the Convention including capacity to enter into relations with other states, as it has relations with the Russian Federation. The Convention says a state need not be recognized by other states. They have been recognized by Russia, Syria and North Korea.
So the Russian intervention is considered illegal under the U.N. Charter because it was not authorized by the Security Council nor does it meet the test of the self-defense Article 51.
But the Charter does not prohibit a state from inviting foreign forces onto its territory. A legal argument based on the Montevideo Convention would be that the two territories were independent states at the time of Russia’s intervention and had the right to request foreign forces to enter their territory. In that sense, it would seem that Russia’s military action in February a year ago was legal.
Later Rulings
However, it doesn’t end there. A reader has pointed out in a comment below that there have been many legal developments since Montevideo, such as the International Court of Justice’s 2010 advisory opinion of the Kosovo intervention, the Canadian Supreme Court’s 1998 Reference on Quebec Secession, and the ICJ’s 1986 guidance in the Nicaragua Case. According to the Princeton Encyclopedia of Self-Determination:
“[T]here is no legal support for the proposition that the right to self-determination encompasses a right of a region of a state to secede from that state. This conclusion was affirmed by the 1996 General Comment by the Committee on the Elimination of All Forms of Racial Discrimination and was reiterated in 1998,” by the Supreme Court of Canada on Quebec’s independence.
In the Kosovo case, the ICJ ruled that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.” It is not clear how Kosovo’s bid to secede from Yugoslavia differs from Donetsk and Luhansk’s declaration of independence from Ukraine. On Kosovo, the ICJ ruled:
“In particular, the Court concluded that ‘the scope of the principle of territorial integrity is confined to the sphere of relations between States.’ It also determined that no general prohibition of declarations of independence could be deduced from Security Council resolutions condemning other declarations of independence, because those declarations of independence had been made in the context of an unlawful use of force or a violation of a jus cogens [compelling law] norm. The Court thus concluded that the declaration of independence in respect of Kosovo had not violated general international law.”
There has been no ICJ ruling on the declaration of independence of Donetsk and Luhansk, which was met with state violence for eight years. The Security Council failed in 1999 to authorize military action in Kosovo and NATO then acted on its own, raising criticism that its intervention was illegal.
Indeed, Russia has cited the “Kosovo Precedent” to justify its intervention in Donbass.
As the reader commented, Russia could make an argument based on “humanitarian intervention”, the so-called Responsibility to Protect (R2P) doctrine, which was adopted by the General Assembly in 2005. R2P is controversial as intervening ostensibly on humanitarian grounds could be cover for ulterior motives.
NATO sought to justify its intervention in Kosovo as a way to stop ethnic cleansing of Albanians. President Vladimir Putin said he was intervening in Donbass to stop a “genocide.” The Security Council authorized neither operation.
U.S. Hypocrisy
The U.S. has been a serial violator of international law. In addition to taking part in the Kosovo operation without Security Council authorization:
- the 1989 invasion of Panama in which an entire poor neighborhood was pulverized, thousands of civilians were killed and there was no Security Council authorization. The U.S. said saving American lives allowed them to invade.
-
the 1983 invasion of Grenada, which The New York Times — by today’s standards — took a very skeptical view of. In an article titled, “Legal Basis for Invasion,” the Times concludes that there wasn’t much of one.
“The rationale suggested by the State Department today might be a significant departure insofar as it purports to provide a basis for ignoring the international law rules against invasions and interventions in the affairs of sovereign states whenever a few countries get together to form a collective security treaty,” the Times wrote on Oct. 27, 1983.
- And most disastrously, the 2003 invasion of Iraq, for which the U.S. did not have Security Council authorization and could not claim self-defense as Iraq had no WMD or means to deliver them against the United States.
Putin cited even more examples in his speech announcing Russia’s intervention last Feb. 24:
“First a bloody military operation was waged against Belgrade, without the UN Security Council’s sanction but with combat aircraft and missiles used in the heart of Europe. … Then came the turn of Iraq, Libya and Syria. The illegal use of military power against Libya and the distortion of all the UN Security Council decisions on Libya ruined the state …
A similar fate was also prepared for Syria. The combat operations conducted by the Western coalition in that country without the Syrian government’s approval or UN Security Council’s sanction can only be defined as aggression and intervention. … But the example that stands apart from the above events is, of course, the invasion of Iraq without any legal grounds. …
Overall, it appears that nearly everywhere, in many regions of the world where the United States brought its law and order, this created bloody, non-healing wounds and the curse of international terrorism and extremism.”
David McBride is an Oxford-educated Australian military lawyer who went to the media to blow the whistle on evident Australian war crimes in Afghanistan. He faces imprisonment. Last March, McBride tweeted:
I’ve been asked if I think the invasion of Ukraine is illegal.
My answer is:
If we don’t hold our own leaders to account, we can’t hold other leaders to account.
If the law is not applied consistently, it is not the law.
It is simply an excuse we use to target our enemies.
— David McBride (@MurdochCadell) March 16, 2022
I concluded an article I wrote last March on this topic:
“Neither an Article 51 self-defense measure, nor a collective security resolution was ever passed by the Security Council. Therefore, according to the strict letter of today’s law, Russia’s invasion of Ukraine is illegal. But after what the U.S. has done tragically to the laws of war and the jungle it has created, it hardly seems to matter anymore.”
UPDATED: This article was updated to consider international law on the question of independence that followed the Montevideo Convention.
Joe Lauria is editor-in-chief of Consortium News and a former U.N. correspondent for The Wall Street Journal, Boston Globe, and numerous other newspapers, including The Montreal Gazette and The Star of Johannesburg. He was an investigative reporter for the Sunday Times of London, a financial reporter for Bloomberg News and began his professional work as a 19-year old stringer for The New York Times. He can be reached at joelauria@consortiumnews.com and followed on Twitter @unjoe
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“It is simply an excuse we use to target our enemies.”
Then I must assume the reactions from Roger Waters and Jeremy Corbyn and others who seem to be on the “progressive” side of this controversy (as with saying Russia’s action last February was “illegal” and “illegitimate”) are not based on what’s “legal.”
The what then? what alternative? questions remain for these types of negative views. They seem to be part of the “fog of war” where friends disagree on a crucial consideration. It would be good to hear more from them on their views.
Otherwise, this thread is very helpful in attempts to figure out how to view Russia’s recently concluded SMO. In short, for me and I think many commentators in this thread, Russia’s reluctant and careful entry into the conflict with its SMO was the right thing to do and unavoidable.
Responsibility for this action must be considered beyond Russia’s alone, to include the history back to 2014 and the sneaking perception management cover of “invasion” and such by the West, plus its opportunism in exploiting the conflict for ulterior motives.
When I finished high school I chose engoneering because the scientific method is pure reasoning. If your theories are valid the must be repeatable under the same conditions by others. And if that can ve done we have a new theoretical model eveyone can accept but continue to test for compliance against physical laws. Physical laws don’t change, just our understanding of them. Civil and criminal laws are nan made and susceptible to no ultimate test by anyone. They are incomplete and they are biased and inconvenient based on the desired outcomes. This is why science will always exceed law in terms of ultimate truth and consequences. You break physical laws people may die. You can break man made laws and people may be saved from a genocide and an immoral and unjust attack against them. So I’m glad I took engineering scien e as it demands truth to ensure life is protected. Law is a jungle of man made tricks and omissions to achieve what one party might want at the expenses of the weaker party. And man made law is subject to so much hypocrisy where real natural laws are not.
A very solid comment ^^
The US does not recognize the ICJ’s jurisdiction, correct? So how can there be any US claims about law and legality under these conditions?
There can be no law or democracy in an institution that provides veto power to a small handful of countries.
There is a contradiction between self determination and sovereignty under the concept of the Nation State.
Someone above made the observation about a lack of legitimacy of the Ukrainian government as a result of an effective US backed coup. That changes everything.
Law includes interrogation of motives. There is a lot of history relevant to motives that is ignored (in the modern era, from the collapse of the Soviet Union, US “shock doctrine” for Russia, NATO expansion, 2008 pledges to bring Ukraine into NATO, US “democracy promotion”, US/NATO arms and training, Fascist legislation, Fascist war and ethnic cleansing of Russian affiliated people 20014 – … et al).
Scott Ritter, in at least one of his US Tour of Duty podcasts with Jeff Norman. includes the doctrine of “preemptive self-defense”, and bases this on a British warship attack on an American ship that was on its way to invade Canada. Some time around 1800.
I only bring this up for those who might want to toss out some basis for declaring that Russia’s actions are “legal”. I cannot find fault with Lauria’s conclusion that “legality doesn’t matter.”
hxxps://www.youtube.com/@USTourofDutyPodcasts
The UN=The League of Nations. I don’t mean that they had the same objective because they did. I mean that they had the same failure – an inability to constrain great powers or any powers for that matter. Did the UN do anything when the US attacked Vietnam? Did the UN do anything when the US attacked Grenada? Did the UN do anything when the US attacked Panama and abducted their President? Did the UN do anything when the US attacked Iran and shot down their civilian airliner during the first Gulf war even though Iran had nothing to do with the invasion of Kuwait, had just fought a bloody war with Iraq that was prompted by the US and which the US gave Iraq WMDs (poison gas) that Iraq used on Iran. Did the UN do anything about the pissing contest over the Falkland Islands that Britain might well have not won had the US not provided rather critical support at the time. Did the UN do anything when the US (via their foreign legion, NATO) bombed the crap out of Serbia? Did the UN do anything when a variety of forces tore Yugoslavia apart after Tito’s death? Did the UN do anything when the US attacked Afghanistan? I would agree that the US was attacked but they never invoked Article 51 to the best of my knowledge. Who would they invoke it against? The attack was not perpetrated by a nation state. The UN did authorize protection for the innocents in Libya when the US claimed that Qaddafi was going to start slaughtering his citizens but they then did nothing when the US and our vassals went for regime change. Did the UN do anything when the US performed a war of aggression against Iraq? Did the UN do anything when Iraq ordered the US to leave and we refused? Did the UN do anything when the US invaded Syria, occupied a third of their country, refused to leave, and started stealing their oil and burning their wheat fields AND funded, trained, and armed a rebel force to oust the legally elected government? And now we come to the Ukraine and Russia’s invasion thereunto appertaining. This highlights a very specific side issue. There is nothing in the UN charter (with all its fine words) that either authorizes any country to interfere in the internal affairs of any other country or impose sanctions (which are economic warfare) unilaterally without the approval and support of the UN. And yet, according to Mint Press the US has perpetrated 81 overt and covert election interferences and 64 overt and covert regime change operations since WWII. On top of which the US has imposed sanctions on all and sundry and actually tries (sometimes successfully) to impose penalties for ignoring our sanctions. All of that to say, I think that the UN is as worthless as tits on a boar hog. The UN has neither the moral authority nor the legitimacy to complain about what any country in the world does at this point.
The term “the UN” encompasses all of the agencies and bodies of the organization. You must be referring to the UN Security Council. The General Assembly passed a resolution in 1981 condemning interference in the internal affairs of a nation, the Security Council never did.
You ask: “Did the UN do anything when the US performed a war of aggression against Iraq?” In fact the UN Security Council did do something. It defeated a US resolution to authorize the 2003 invasion. The US just ignored it and invaded anyway. Likewise, Nato’s war against Serbia in 1999 was not authorized by the Security Council but they proceeded anyway.
Because of the veto of the five big powers on the council it is difficult to get agreement if one of those powers is involved in the use of force. And as we see, even when the council acts it does not stop determined actors like the US and Nato to violate international law and take military action anyway. On the Afghanistan war of 2001, the UN Security Council did authorize a security assistance force, which turned into the US-NATO operation that lasted 20 years. You are right that Article 51 was not invoked by the US.
“International law” is a chimera. Nations live in what Hume called the savage “state of nature. While their citizens are subject to punishment for violating the laws of their state, there is no way to compel obedience to laws by nations, save by waging war against them. The United Nations, like the League of Nations before it, almost immediately devolved into a rubberstamp for the tyranny of its most aggressive member. NATO should have been disbanded the day the Warsaw Pact dissolved; instead, it has become another instrument of US global ambition.
You may recall that Russia and China issued a joint statement last February calling for genuine recognition of the human rights codified by the UN. They further clarified that they pledge to cooperate “without limits” to end the “rules based order” of the US. I daresay we have no hope of getting back our republic until the empire that replaced it and usurped our liberties has been abolished.
Given my studies of how the great wars of the last century so completely and rapidly spiraled out of control, I fear we have at best a 50-50 chance of seeing the next Christmas.
“Some animals are more equal than others.” This line from Orwell’s Animal Farm sums up America’s attitude on The Rule of Law perfectly.
America started the war in Ukraine to protect The Bank.
Legal has nothing to do with any of this.
How do Angela Merkel, François Hollande, and Petro Poroshenko stand in UN legality? By their own admission they had no intention of applying the agreement, and wanted to gain time to build up Ukraine’s armed forces for an attack on ‘Russia. They lied to Putin, and cheated. The Minsk II accords were voted in UN resolution 2202. They are complicit in the atrocious crimes perpetrated against the Russian communities of Ukraine, and should be arrested and sent to the ICJ in the Hague.
Perfidious use of the Kosovo ruling by both sides: The court ruled (in essence) that the declarations of independence have no legal meaning as it was not done by an official body. The ruling simply states that anyone can declare whatever they want.
After the the events of the stage-managed Maidan coup and the Odessa fire came the first Ukie invasion into the Donbass in 2014-15. The invasion was led by the Azov Battalion who illegally occupied Mariupol on the Black Sea coast, shot up the town, and killed a number of civilians. The response from the Donbass citizenry was to hastily form armed militias and put them into position as the Ukie army rolled in. At this stage Russia remained silent but Russian citizens began to cross the border from Russia proper into the Donbass and join in both cities of Lugansk and Donetsk. At this stage war materiel and foodstuffs also began to cross the border from Russia into the Donbass. Again Russia stood still at this particular juncture. Then came the battles at Ilovaisk and Debaltsevo in 2015. The Ukie army was soundly defeated by the militias until the same second intervention after shelling to Donbass from 2014=2022. Some 14000 Donbass citizens had already died as a result of the shelling on the Donbass in 2024=15. Eventually Putin had had enough and committed the Russian Army to the conflict. The rest is, as they say, history.
Whether or not Putin’s actions were legal seems a moot point. But quite frankly such legal niceties seemed rather irrelevant beside the war on the ground. The Donbass citizens had every right to defend themselves.
Very well written. Thanks.
Thank you for the analysis. The law that the US constantly invokes and relies on in all these cases is simply the law of “Do as I say, not as I do.” It’s called the law of hypocrisy and it applies equally to all the Western allies who have joined in with such US interventions.
As such, the US should shut its mouth and stop making a fool of itself in condemning Russia’s intervention in Ukraine which was obviously an intervention to protect the ethnic Russian people of Donetsk and Luhansk from the aggression of the fascist government of Ukraine. The US has no legal basis to say anything because it has itself created and continues to create the very precedents that Russia has logically and reasonably invoked.
Wow! Double concise. Great witing. Thanks.
Following the 2014 US-backed coup in Ukraine the Russian language was prohibited. Nationalist/fascist gangs would roam the streets tormenting eastern Ukrainians. These self-anointed Nazis were striving to make Ukraine a “pure” nation populated exclusively of white-European, Christians.
In 2015 and 2016 Russian ministers reported to the UNSC details and dates and photos of crimes committed by fascist gangs, the crimes of maiming and killing Ukrainians in the Donbas by these brutal gangs.The UN Security Council did not respond positively to the Russian presentation requesting help. The UNSC did nothing. The killing of Russian-friendly-Ukrainians in Donbas continued. All this as the US sends weapons to Ukraine. The Russians have families living in Ukraine. The pressure to stop the carnage must have been overwhelming for the Russian leaders. How much humiliation does the world expect Russia to endure?
Once the whole picture is in view: Minsk was ignored, US sanctions on Russia, US sponsored coup overthrowing Yanukovych, several US senators as far back as 2015 and 2016 made several visits to Ukraine to encourage Ukrainian militia to fight Russia promising lots of weapons from Washington D.C.
One might conclude Russia’s 2022 intervention was not only the right thing to do to stop the massacre, it was the most humanitarian thing to do.
It seems the UN showed biased against Russia.
You are correct. Now what will China, Iran, Türkiye, Indonesia, Vietnam, Pakistan, California, Brasil, Argentina, Mexico, Cuba, Syria, Bolivia, Venezuela and north Korea and a host of African countries do?
Hardly a valid or legitimate assessment when the deciding body is itself heavily biased against Russia. The UN clearly doesn’t see the absurdity of its ruling. It’s lack of neutrality invalidates its position.
Anyway, self defence is not an objective decision, it is highly subjective. Anyone can see that the west has been threatening Russia for years, so one could argue, as they do, that they are defending themselves against western aggression. There, that satisfies the 2nd UN criterion of legality.
Really? Over 14,000 Russian speaking people have been massacred in Donbas by the Ukrainian Nazis since 2014, and UN is questioning why Russia is “invading” Ukraine?
Thank you for – yet another – fascinating article.
Please note that the link to the Kosovo Protocol is broken and should be hxxps://www.lse.ac.uk/ideas/Assets/Documents/updates/2022-SU-Valur-RussKosovo.pdf.
Considering that so much of this is about politics – I think it will be interesting to see how much public pushback there is – how big, and how loud, the anti-war coalition is – there is a demo Feb 19 in DC – “Rage Against the War – the speakers list has some interesting folks on it – a “left-right” antiwar coalition. So, as pols have a habit of sticking their fingers out to see which way the wind is blowing – I suspect what happens with US involvement may well depend on which party wants to take advantage of, and cater to, the anti-war movement and not on whether Russia’s intervention is justified legally or morally – the only 2 things pols give a damn about is getting votes and money – they may be able to figure out a way to do both – so this will be interesting …
hxxps://rageagainstwar.com
will only be successful if there are a couple hundred thousand people in attendance. Do you know anyone who is going?
Then there is the infighting amongst the organizers about who is pure enough to deliver the anti-war message. Nothing destroys a movement faster than the selfish motivations of those who claim to lead it.
Has anyone here contributed to either the speaker’s or to the event’s budget? When I did it was only 2/3 of the way to fulfilling its meager $60,000 budget.
It’s morally justified to intercede with a SMO when a proxy force armed to the teeth by the biggest empire the globe has ever seen is sitting on the border of Donbas set to murder another 14,000 innocent ethnic Russians.
The whole concept of the ‘UN Charter’ and ‘International Law’ are obviously nothing but a bag of empty arguments in a geopolitical game of football. Powerful states will do whatever they wish despite ANY law.
On a micro level, look at how Mr. Assange has ended up. Where are his legal rights? Can anyone seriously claim that he even has any at this stage? What have all those petitions, peaceful protests around the globe, whole spectrum of awards and everything else including the kitchen sink done to free him? That’s right, big fat zero!
The Russians understand that ‘progressive left’ ways of getting ‘justice’ will have no effect – they been there and done that in Minsk. Hence the justice the Russians seek will be decided on a battlefield, like it or not.
Meanwhile the only hope poor Mr. Assange has of ever being freed is if the Russians decide that London too needs to be de-nazified. Sorry Mr. Waters, playing a few songs outside Mr. Assange’s prison simply won’t cut it…
A “member state”? Can anybody join?
Of course not.
Time to throw out jargon and insane reasoning.
None of this type of justification of who did what first makes sense at all any more.
The road goes nowhere.
They make you jump through the hoops first to show you’ve been broken in.
Everyone needs to stop and desist on these idiot terms and topics.
Oneway or another there’s always a war budding.
It’s because of the attitude to ‘others’.
I have very small patience for twaddlings about “law” and “rule of law” There are very good and very ancient rules about how a proper legal system would work. They are practiced almost nowhere in the modern world.
If laws cannot be enforced consistently, if they are not equitable and logical, they do not exist. “International law” is a fantasy. Russia did what it saw it needed to do, in the face of aggression against it and an absence of any other effective remedy.
Ethnic Russians were being slaughtered for eight years by Washington’s Kiev proxy force.
If one looks further back the hypocrisy doesn’t stop at the US. This ultimately goes all the way back to the Treaty of the Westphalia and the very concept of “just” war. While the European powers followed that treaty somewhat faithfully among each other, they never respected it when it came to their interactions with other states in the world and their colonial ventures. As geopolitical “realists” are fond of quoting from Thucydides: “the strong do what they can and the weak suffer what they must”. That seems to be the real predictor of war throughout history, even during the modern era of Westphalian international law.
So perhaps the real question should be this: what will world civilization look like when we’ve finally reached a stage where we CAN consistently rely upon legal frameworks to justify or effectively criminalize war?
One of the undiscussed questions is the legitimacy of a coup based government. The Donbass and Crimea never accepted the legitimacy of that government and immediately sought help fromRussia in defending themselves. UN law cited here does not address the issue of coups. What seems to happen with a coup by armed seizure of power or corrupt law fare is that they simply gain legitimacy by sheer power/violence, or by later having an election of questionable fairness. One can claim coups are internal affairs but not in this case ( or Chile, Bolivia,Honduras, Brazil, Venezuela etc where US fingerprints are all over mac of these) Also invasions are treated selectively such as US led actions in Iraq, Syria, an Libya, Saudi actions in Yemen, and Israel’s attacks in Gaza.. In these cases US global warfare trumps UN law. The bottom line is that the meaning and enforcement of these concepts of law are negated by the military and political power of the US which includes the power to starve or deprive nations of medicine, support coups, and blow up pipelines . The UN will never have the power to be a peacemaking force until there is a balancing check on the US and its lopsided alliances where Anglo and Euro powers are aligned and dominate the global south in extractive economies that leave oil spills and toxic materials across the world and allow horrendous labor practices. Russia’s defense and liberation of the Donbass and Crimea is ultimately a moral and military question and a question of self defense. Trying to turn it into a legal question under the utterly compromised Western global empire is absurd.
The above discussion fails to address directly the question of whether armed military intervention is ILlegal rather than simply ‘not legal’ as specified in accepted international law (if we define that solely as law as established by the U.N.). E.g., while by that definition Russia intervened in Ukraine because it could and felt that it should, just as the U.S. ‘intervened’ in Iraq in 2oo3 because it felt that it could (even though Kofi Aman expressed the opinion that said invasion was ‘illegal’) and perhaps as NATO ‘intervened’ in ‘Yugoslavia’ in the late ’90s because it felt that it could, in all three cases because the interveners had veto power over Security Council reaction against them.
Sounds like a ‘legality’ tempest in a teapot to me, not that I consider the results (and perhaps the U.N. itself) to be irrelevant in the real world. Perhaps it’s time for yet another attempt to create a useful world government.
Sorry – that was Kofi Annan of course above: typos tend to accumulate when it’s time to fee the cat.
The problem with applying internal law in this instance is it has been completely ignored when the US acts illegally. For instance, the 2014 coup in Ukraine could rightly be called a U.S. regime change operation. How is that legal? The complete lack of consistency by the Security Council has turned international law into a joke. You can’t just apply it when it’s convenient for NATO and ignore it when it’s not. 2/3 of the world’s population isn’t falling for the double standard. Neither should we.
Thank you ^^
I totally agree.
I don’t think any great reliance should be placed on the Supreme Court of Canada determining that Quebec could not secede from Canada. It was judge and jury in its own case there. And if that was the precedent, that argues that a polity such as Quebec, despite meeting the Montevideo criteria easily, is forever barred from secession as a result of its conquest by (British) military force.
I very much doubt that is the law, but if it is, then the law is an ass. And it is the law of the victor, the law of the aggressor, the law of the strong over the weak.
I was one expressing concern over Roger’s statement of the “illegality” back in that thread, and I thank you for your as usual serious attention to this matter. If I’m understanding you correctly “illegal” may or may not be correct, and further investigation is needed.
My question with the earlier Roger Waters topic should have been clearer. I wasn’t so much concerned with the legal question but with the question of how Russia should have reacted, including to a massive increase in size of Kiev’s attacks in the period immediately leading up to the Feb 24 action taken.
It should NOT have “invaded,” according to many “progressives” and I assume that would also be Roger’s view. There was a decided condemnation by this political sector at the time, although I do not recall CN’s stance on this particular question. So, then, legal or not, Russia should have done what?
The only answer I can suppose on this is: nothing military. It should have kept to voicing its protests only. It should have waited until, say, Ukraine or a NATO army entered Crimea, and only then taken military action with its SMO. Which also, then, I think would be “legal.”
I’m not satisfied with this answer and hope for further guidance on what was right or inevitable, regardless of UN provisions at the time and the question of “legal.”
Consortium News previously published two articles on the question of the legality of Russia’s intervention.
Scott Ritter argued that it was legal under Article 51.
hxxps://consortiumnews.com/2022/03/29/russia-ukraine-the-law-of-war-crime-of-aggression/
Joe Lauria disagreed and argued that it was illegal because Article 51 did not apply and the Security Council did not authorize it.
hxxps://consortiumnews.com/2022/03/29/is-putins-war-legal/
Scott Ritter posted on Twitter on 4th February 2023, “There are rabid dogs out there, and we need Atticus Finch’s to shoot them. I do, however, object to the senseless shooting of healthy dogs. Ukraine is a rabid dog. Russia is Atticus Finch. Thus ends my lesson.” Ritter is undermining his own credibility with such xenophobic hatred (and his poor grammar).
Thank you for sharing. I don’t have Twitter.
Atticus Finch was (is) a wise man.
If you have ever listened to Ritter’s podcasts on “US Tour of Duty”, you’d have a better explanation of what Ritter is talking about.
Ritter is not Xenophobic in any way. He has consistently and often praised the AFU soldiers. His heart breaks over and over again for the horror that is being visited upon Ukraine.
But he does despise Nazis. hxxps://www.youtube.com/clip/UgkxfrMAE_-bQNggzucDP5SDDlFecrcCqmM3
There is absolutely no doubt that Ukraine is being ruled by Nazis. Nazis who achieved their position of power with the help of the US government.
Do you not recognize that the destruction of the Nordstream gas pipelines by Biden, Blinken, Sullivan and Nuland is an Act of War?
There are Nazis deeply embedded in the US government.
I have no problem including those 4 in Ritter’s category of “rabid dogs”.
The Fascists who control the USA are destroying it in their useless attempt to maintain hegemony. The world is turning on the US and I support their every effort. I am ashamed to be an American.
If you have ever listened to Ritter’s podcasts on “US Tour of Duty”, you’d have a better explanation of what Ritter is talking about.
Ritter is not Xenophobic in any way. He has consistently and often praised the AFU soldiers. His heart breaks over and over again for the horror that is being visited upon Ukraine.
But he does despise Nazis.
There is absolutely no doubt that Ukraine is being ruled by Nazis. Nazis who achieved their position of power with the help of the US government.
Do you not recognize that the destruction of the Nordstream gas pipelines by Biden, Blinken, Sullivan and Nuland is an Act of War?
There are Nazis deeply embedded in the US government.
I have no problem including those 4 in Ritter’s category of “rabid dogs”.
The Fascists who control the USA are destroying it in their useless attempt to maintain hegemony. The world is turning on the US and I support their every effort. I am ashamed to be an American.
Your attack on Ritter means you just haven’t figured it out yet. You will.
Exactly. The fascists and neocons deliberately provoked the Russian Federation into massive armed intervention in Ukraine. The only thing worse than direct Russian intervention would have been no intervention. All ethnic Russians in Ukraine would have been slaughtered by the Nazis. The entire gang of NATO thugs should be arrested and put on trial for war crimes and crimes against humanity.
Zelensky’s attacks on the sizable ethnic Russian population of eastern Ukraine shows that Russia’s “invasion ” is, in fact, a humanitarian intervention. What stands out is the degree to which Russia’s efforts have deliberately targeted infrastructure at minimal loss of life. (Americans seem largely unaware that Ukraine had been a region of Russia – not an independent country – from the 1700s until the USSR collapsed in 1991.)
If we were to accept it is a humanitarian intervention, that is a moral justification not a legal one. It is a moral justification that is often used to obtain UN authorisation, which then in turn provides the legal justification.
Versus “invasion,” humanitarian intervention is a forceful consideration as to what motivated Russia to act, given the violence in eastern Ukraine and its history. What stands out for me is the way the careful SMO operation has been distorted to suit the West’s brainwashing, and the sudden, increased nature of the attacks right before Feb 24 as further provocation and attempt to lure Russia into “invasion.” What further stands out is your view here as hardly ever expressed by those questioning the official narrative.
Most humanitarian interventions do not require the conscription of tens of thousands of desperately poor young men to expend their lives shooting at other desperately poor young men. I’m not sure that the vast number of Russian parents now mourning the loss of their sons, nor the equally vast number of Ukrainian families bombed out of their homes, would see this as humane, no matter how threatening US/NATO expansion was.
Poor young men and their families always pay the price for their governments going to war.
It’s too bad war makes some rich people even richer and that is obviously their life’s goal, poor peoples’ living or dying doesn’t really concern them.
When there are peace agreements which one side is blatantly lying about (to gather up their tools for war), WTH is the other side supposed to do, after EIGHT long years of provocation and killing….?
I think you’re being a little misleading here–the devastation is the terrible result of the ongoing conflict in Ukraine following the 2014 coup, with its further possibility of nuclear conflict, which has been so worrying in recent months. You seem to think Russia’s “invasion” occurred in 2014 but this is not the case, and we perhaps need more discussion of what its SMO (Special Military Operation) actually meant.
Russia’s way of fighting the war under this SMO was puzzling for many people due to its restraint. It’s ironic that there have been accusations of Russia as “dithering” or going much too slowly, whereas the SMO was primarily a police action, an effort at protection, including establishing humanitarian corridors and efforts to avoid harming civilians not directly involved in the fighting. It was not Putin as a new Hitler sweeping across Europe. The very word “invasion” is misleading, and there is a great deal of confusion about what has happened.
The “vast majority” of Russians 100% support this war. They recognize the US actions as a threat against Russia’s very existence. The US Oligarchy has been trying to break Russia apart ever since the US Army invaded Russia during the 1918 revolution.
Aaron Good shows that America was founded by crooks and is still run by crooks.
hxxps://www.youtube.com/playlist?list=PLDAi0NdlN8hNArLl765PXe8tsTKmOciGL
China has eliminated extreme poverty. Have you kicked a homeless guy yet today?
The US Oligarchy installed Yeltsin after the breakup of the USSR. And that Oligarchy did its best to strip Russia of all of its wealth. The US Oligarchy made a huge mistake when they allowed (encouraged) Putin to take over for Yeltsin.
There is a story about how Yeltsin’s alcoholism was because of the guilt he felt over betraying the USSR and Russia. Yeltsin was the one who convinced Putin to take the Presidency as a form of self-redemption. Putin reportedly did not want the job.
But now Russia stands toe-to-toe against the American Nazis. Putin rescued his nation from the US Oligarchy’s neocolonialism. He has offered the world the strength to unite against the American Oligarchy and to escape from American Hegemony.
My hope is that his example will spread even to the USA so that Americans can overthrow the Oligarchy that is trying to destroy our nation to satisfy their greed.
In China: corrupt Oligarchs are executed.
In Russia: corrupt Oligarchs are disappeared
In the USA: corrupt Oligarchs install America’s political leadership.
While Montevideo may have codified legal principles of statehood in 1933, you still have to look at the subsequent developments in international law to determine contemporary definitions of the terms and conditions. In particular, you need to look at the ICJ’s 2010 advisory opinion of the Kosovo intervention, the Canadian Supreme Court’s 1998 Reference on Quebec Secession, and in general, the ICJ’s 1986 guidance in the Nicaragua Case.
You have confused the issue of secession with self-determination, both of which have extensive case law and interpretive texts that impose serious limitations and caveats that you do not acknowledge. A useful excerpt from the Princeton Encyclopedia of Self-Determination follows:
“[T]here is no legal support for the proposition that the right to self-determination encompasses a right of a region of a state to secede from that state. This conclusion was affirmed by the 1996 General Comment by the Committee on the Elimination of All Forms of Racial Discrimination[1] and was reiterated in 1998, when the Supreme Court of Canada” dealt with the issue of Quebec’s independence.
The only legal avenue available to Russia was the incoherent principle of ‘humanitarian intervention’ that has yet to be fully defined or adopted in international law. But there is little chance of a meaningful debate on that topic since NATO has distorted it through inconsistent and arbitrary application. The debate at hand is best summarized by the Princeton source as follows:
“Self-determination remains a rhetorical tool utilized by groups within states seeking independence, autonomy, or simply a greater degree of control over issues that directly affect them. Many of these groups share ethnic, linguistic, or other characteristics, but the international law of self-determination — as opposed to a few non-binding declarations and recommendations — has never accorded to such groups any special right of self-governance. Given the widely divergent situations within states, it is unlikely that self-determination will acquire a sufficiently determinate definition to enable it to be used as a legal tool for adjudicating disputes, even if it continues to be interpreted as excluding unilateral secession.”
While I don’t doubt you are quoting accurately
“[T]here is no legal support for the proposition that the right to self-determination encompasses a right of a region of a state to secede from that state. ”
To me this seems utterly incoherent. On its face it seems to preclude any kind of secession and any kind of self-determination. How would this be consistent with the Woodrow Wilson principles of self-determination? Or with, for example, the case of Yugoslavia or Czechoslovakia?
Drew Hunkins, right you are. As for Article 51, the SMO was legal because it’s evident to everyone that one country can invade if it’s obvious another intends to create a war to unseat a regime. (Read Hillary Clinton’s emails). The goal of Clinton types for thirty years has been regime change in Russia. The pressure, including the slaughter by Nazis and Fascists of 14 000 Russians speakers in the Donbas after the US 2014 coup, that went on for EIGHT years was enough to make Article 51 applicable.
But you have to read the text of Article 51. A UN member state needs to be attacked first before invoking it.
But has the ukrainian gouvernment in kiew after 2014 be the legitimit gouvernment of ukraine? If one considers the former prsident of ukraine as the legal president, since he was elected by the majority of the people in ukraine, than the donbass republics are the legal heir, and hence have the right to ask russia to come and help to defend against the usurpers.
A very good point, unfortunately not being discussed at all.
I just wanted to add that my thoughts are not meant to minimize the very real usefulness of Joe Lauria’s outline of the legal issues. Right now a large swing of public opinion in the US, already begun and manifest in the latest Republican proposal to end aid to Ukraine, could make a difference.( I dislike both parties but any drop in support for this war is a good thing).
All these charters/rules/legalities are open to interpretation and laced with ambiguities which any good lawyer could contest. And we all know they’ve got it in for Russia, so no matter what charters/conventions etc. Russia will always be the “bogeyman” hiding under the bed.
That’s how I see it as well. The world understands that Russia intervened to save people who were under attack by Zelensky’s forces because of their ethnicity/effort to remain aligned with Russia rather than align with the West. I suppose this could be the argument between the letter of the law and the spirit of the law. We can point out that Russia has a moral duty to intervene. (Beyond that, we can certainly debate the legitimacy of Zelensky’s presidency.)
I concur
And his capability. (But then we could argue that point on many current leaders in the west.)
From another article today: “Al-Mayadeen has however reported that the delivery of international aid, as well as the speed of relief and rescue work in Syria, continue to be impeded as the Damascus international airport is not fully operational at the moment. The airport was hit by an Israeli missile on Jan. 2 and repair work is not yet complete.”
Western concerns about legality are singularly one sided. The West, still more or less dominant, determines the PRACTICE of warfare and of enforcement of international law. For enforcement, you need consensus of the Security Council. Systematic vetoes of United States prevented this consensus. The presence of American and NATO troops, structured to damage its economy, is another example. The murder of Gen. Soleymani and Iraqi officials with military means was another act of war. The list of violations of UN charter in 21st century is long, and who produced most entries?
One should also examine the meaning and importance of Minsk Agreements in terms of human rights, something that even anti-imperialists in the West do not do to my knowledge. Following 2014 coup, Ukrainian authorities in Kiev immediately abolished the use of Russian language in official organs and outlawed leftist parties and repressed other parties popular in mostly Russian speaking regions, accompanied with violence by radical groups that were given impunity. Inhabitants of “rebel region” had a LEGITIMATE concern not to be reduced to the status of Palestinians in Israel and occupied territories. Thus the requirement in the agreements to “move the clock back” and thus enable rebels to rejoin Ukraine without being afraid for their lives, limbs and many less acute but basic rights.
Not only Kiev refused the needed compromise to guarantee those rights, but instead of discussing the reforms required by Minsk Agreement, the relevant committees in Verkhovna Rada were issuing law projects how to organize repressions “necessary” to re-integrate those regions, including Crimea. There was a recent discussion on French TV on what would be needed to “re-integrate Crimea”, and the conclusion was that repeating Nakba, but in 21st century and in Crimea would be necessary. Which well may be the case with the current “values” reigning in Kiev, and apparently, in West European countries like France.
So either we need a Holy War, Deus Vult, Crimea will be ours, updating the concept of human rights in Western textbooks, to conclude that re-integration should be prevented by all means necessary.
Part of military reality is that it is highly unlikely that Nato + the remains of the Ukrainian army can get back any territory or even defend Western Ukraine from an all out Russian war. And there is a neocon faction that knows this and wants to test-run “limited nuclear war”. How this could help Ukraine is sickeningly inscrutable. Are they just playing bad cop? Many insiders say no, they are serious and have too much sway to dismiss lightly. The thing is that this along with a great deal of US regime change rhetoric shows why Russia’s big ‘nyet’ on Nato and the US moving into Ukraine is valid as a matter of existential threat.
Why was it valid for the US and Saudi Arabia to join with salafist killers to “liberate” Syria. Why was it valid for US and others to join Libyan factions to overthrow Gadaffi. When it is a western supported color revolution or US war all these subtle distinctions of bids for independence versus a nation’s territorial and political integrity disappear with no meaningful censure by the UN.
Dead on. Ufortunetly we will have to wait a few decades for America’s decline. Also there is a lmited amount of people that read to get actual information rather than others that reenforce the current opinions that they hold dearly. I do believe that many countries despise America but there is little they can do about it . Be careful: “it is dangerous to be right when those in power are wrong”.
Voltaire!!
Perfect question, Joseph Tracy.
Who will ask the UN?