Following a monthslong buildup of military forces along Ukraine’s borders, Russia launched a full-scale invasion of its western neighbor on Feb. 24. The attack came almost exactly eight years after Russia annexed Crimea. To understand the implications of these events under international law, Harvard Law Today reached out to Professors Gabriella Blum LL.M. ’01 S.J.D. ’03 and Naz K. Modirzadeh ’02 , both experts in the laws of war.
The faculty director and founding director, respectively, of the Harvard Law School Program on International Law and Armed Conflict, Blum and Modirzadeh explained via email that Russia’s assault is a clear violation of the United Nations Charter and that sanctions imposed by the United States and others are a legally permissible response. They also argued that, despite the failure of the U.N. Security Council to prevent the conflict in Ukraine, “this might be a moment for a renewed and more inclusive engagement around the legitimate interpretation of the international law that governs the use of force.”
Harvard Law Today: When is it permitted under international law for one country to invade a neighbor, and has Russia met that burden?
Gabriella Blum and Naz Modirzadeh: Countries’ sovereignty, political independence, and territorial integrity are widely recognized principles, enshrined in the United Nations Charter. There is a clear prohibition on the threat or use of force between states, other than as authorized by the Security Council or for purposes of the right of self-defense “if an armed attack occurs” (quoting the charter). A narrow understanding of anticipatory self-defense against an imminent armed attack has also been accepted by some international lawyers and policymakers as falling within the self-defense justification, as has a concept of protection of nationals abroad (for instance, in cases of hostage taking).
None of the justifications offered by President [Vladimir] Putin for the invasion of Ukraine — including protecting Russia from NATO’s eastern expansion or protection of ethnic Russians from alleged oppression by the Ukrainian government — could conceivably be understood as falling within the self-defense exception. No less problematic is Putin’s assertion that he is now coming to the aid of two republics in the Donbas region in eastern Ukraine that Russia has recognized as independent in recent days.
Naz Modirzadeh and Gabriella Blum, founding director and faculty director of the Harvard Law School Program on International Law and Armed Conflict.
HLT: With respect to the Donbas region, what role does the will of the people in an affected nation or territory play in determining independent statehood, and how does that align with what is happening on the ground in Ukraine?
Blum and Modirzadeh: The right of peoples to self-determination is a fundamental right under international law. That means that any Russian ethnic minority in Ukraine has a right to determine its political status and pursue its economic, social, and cultural development. Yet, there is no right to unilaterally secede from a state and form a separate state. In recognition of states’ right to preserve their territorial integrity, secession is allowed only in extreme cases of repeated oppression or subjugation of the minority, leaving it with no other option to exercise “internal self-determination” in a meaningful way. International lawyers call this “remedial secession.” Putin seems to have alluded to this when he claimed that “[i]t was necessary to immediately stop this nightmare: the genocide against the millions of people living there, who rely only on Russia, hope only on us” — a claim that Ukraine emphatically denies.
There is much reason to suspect that Putin’s description of the situation in eastern Ukraine is a gross and self-serving exaggeration, if not an outright fabrication.
There is much reason to suspect that Putin’s description of the situation in eastern Ukraine is a gross and self-serving exaggeration, if not an outright fabrication. There have been some ongoing disputes over the use of the Russian language in official dealings and in schools. Even if language rights were denied or curtailed, this would hardly justify secession and would certainly not amount to genocide.
It is important to recall that this is the latest salvo in a repeated practice by Russia to recognize breakaway republics in areas over which it has territorial aspirations: In 2008, it recognized the Georgian regions of Abkhazia and South Ossetia as independent, and in 2014 it first recognized Crimea as independent and then annexed it. The fact that all these attempted secessions occurred after Russia had already intervened militarily in the region further weakens any claims for recognition of these areas as independent states.
HLT: Now that Russia has invaded Ukraine, what obligations do the parties have to prevent civilian casualties?
Blum and Modirzadeh: Both Russian and Ukrainian forces, as well as any other parties to the armed conflict, must abide by the laws of war, also known as international humanitarian law. These laws require belligerents to direct attacks only against able-bodied combatants and military objectives and to avoid or at least minimize harm to civilians, civilian objects, and the natural environment. Because Ukraine has accepted the jurisdiction of the International Criminal Court over the situation in Ukraine on an open-ended basis from February 20, 2014 onwards, the ICC would have the power to prosecute any war crimes, crimes against humanity, or crimes of genocide committed on any part of the territory of Ukraine. The ICC prosecutor has already started gathering initial evidence.
HLT: Generally speaking, when a nation violates international law, what legal recourse does the global community have? What role do the U.N and the U.N. Security Council play, and how effective have they been or can they be?
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