South Africa: Russia’s Invasion of Ukraine Is Illegal Under International Law – To Suggest It Isn’t Is Dangerous

While the world is largely united against Russia’s invasion of Ukraine, South African public figures, including the government, have tried to play down the fact that it is in fact an invasion. And their frequent calls for negotiation tend to frame the conflict as one in which both sides should be willing to make concessions.

President Cyril Ramaphosa even reported that Russian President Vladimir Putin appreciates his “balanced approach” to the conflict. So what does international law say when one country sends armed troops across one border and bombs the towns of another? The answer calls for a historical reminder.

After the end of World War II in 1945, the United Nations was created. His first declared goal was

to save future generations from the scourge of war, which twice in our lifetime has caused untold suffering to mankind

To this end, he emphasized that the world order was based on the sovereignty of States (Article 2(1)) and prohibited the use of force by one State against another (Article 2(4)).

There are only two narrowly defined exceptions in the United Nations Charter, the world body’s founding document, to the prohibition on the use of force. These are met when states act in self-defense or under the authorization of the UN Security Council. Russia’s invasion of Ukraine can therefore only be legal if it falls within one of these exceptions.

It is absolutely indisputable that the sending of armed forces across the border of a State, without its consent, is a use of force. This happened when Russia sent tanks and infantry across Ukraine’s internationally recognized borders. President Putin’s recognition of two separatist regions in southeastern Ukraine prior to this decision does not affect their status as Ukrainian territory under international law. Indeed, it violates a separate rule protecting state sovereignty: that states cannot interfere in the internal affairs of others.

Invasion apologists have focused on the West’s “provocation” of Russia, particularly through its expansion of NATO to include Eastern European states such as Croatia, Estonia and Poland.

But focusing on why Russia feels threatened by the West confuses causation with justification. Moreover, by referring only to the reasons why Russia supposedly feels threatened, and by not addressing the legal situation at all, the South African government, the ruling African National Congress – and other apologists – undermine the most cardinal rule of our international legal order. It is a rule upon which South Africa‘s own survival as a state depends.

Legal analysis

As we have established that Russia used force against Ukraine, the next step is to analyze whether Russia can invoke one of the exceptions justifying force. Before doing so, we must dispose of a possible objection to a legal argument based on the Charter of the United Nations. When the UN was created, many states, including most African states, were still colonized. They could therefore not participate in the drafting of the charter.

Although they voluntarily joined the UN after gaining statehood, they had no role in shaping the text of the charter. These decolonized states have sometimes rejected rules developed without their consent. But they have never resisted the underlying principle of state sovereignty, nor the rule that states cannot use force against each other.

Indeed, as Kenya’s representative to the United Nations, Martin Kimani, recently pointed out, decolonized African states even prioritized standards of territorial integrity and state sovereignty over any rights that they might have had to reclaim territory they had due to the arbitrary mapping of their former colonial powers. As Kenya has pointed out, African states accepted the borders imposed on them by colonial powers in order to preserve peace and foster cooperation.

So does Russia respect the exceptions to Article 2(4) of the UN Charter?

There are only two in the charter itself: when force is authorized by the UN Security Council (article 42), or when a state acts in self-defense (article 51).

A third exception has also been suggested by scholars and commentators, based not on the charter but on moral considerations and (limited) state practice: humanitarian intervention or, in its most widely accepted formulation, duty to protect. As accepted by the UN General Assembly, this exception would not allow Russia to use force without the authorization of the Security Council. The Security Council has not authorized Russia to use force against Ukraine.

Russia’s only remaining justification is therefore self-defence, which is spelled out in Article 51. This states that states have the right to defend themselves “if an armed attack occurs against a member of the United Nations”.

An armed attack is therefore an essential prerequisite for the lawful use of force, and it is a condition of strict interpretation.

This legal requirement is supplemented by customary international law. The wording here is that the necessity of self-defense must be

instantaneous, overwhelming, leaving no choice of means, and no moment for deliberation … and that the {defensive} force, even assuming that the necessity of the moment {allows it} to enter the territories of the {State attacker}, did nothing unreasonable or excessive; since the act, justified by the necessity of self-defence, must be limited by this necessity, and clearly contained in it.

There must therefore be an armed attack, already begun or imminent, and force used in self-defence must be the only means of avoiding or repelling it.

Russia has not suffered any armed attack from Ukraine, or even from any state. Neither NATO’s presence in Ukraine nor any of the other justifications advanced by Russia and its apologists rise to the threshold of an armed attack. This includes a series of allegations. These cover Ukraine’s alleged mistreatment of Russian speakers in that state, alleged links between the West and the far-right in Ukraine, and the alleged presence of sophisticated weaponry in the state.

There are other resolution channels for these kinds of grievances. And even if these channels do not work and Russia finds itself in a situation where it “feels” threatened, it has no right to use force. Whether the requirements of self-defense are met is a matter of fact, not sentiment.

Russia’s invasion of Ukraine is therefore illegal.

Dangers

There are two significant dangers that flow from any attempt to disguise or distort the illegality of the invasion, which recent statements by the South African Foreign Office illustrate only too well.

The ministry’s call on “all parties to respect international law, humanitarian law, human rights and the principles of the Charter of the United Nations, and to respect the sovereignty and integrity territory of the other” distorts the facts. This is because it gives the impression that Ukrainian troops are occupying Russian territory or bombarding its cities.

The moral equivalence this creates between opposing states is then underscored by the ministry’s call for negotiations to resolve the current “situation”.

This is the second and most dangerous threat in South Africa’s defense of Russia. We dare not ignore that this is a shocking proposition that Ukraine should have to negotiate to secure the withdrawal of Russian troops. This is shocking because it transfers the responsibility for the invasion to Ukraine itself. In fact, Ukraine should have nothing to do to make Russia obey one of the most cardinal rules of international law.

No state, whether Ukraine or anyone else in the global community, should have to earn Russia’s respect for the law. If the rule of law is not respected, the entire world community becomes as vulnerable as Ukraine is today.

Cathleen Powell, Associate Professor of Public Law, University of Cape Town

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