Title: Recourse to use of force or threat thereof, justification

of an illegal war: A tale of the Ukraine-Russia war

Author: Kudakwashe Z Mapako

Affiliation: Africa Centre for Science and International Security

Abstract

The contemporary concept of International Humanitarian Law holds a dualist

conception of armed force, which separates the law that governs recourse to force or

threat thereof (jus ad bellum) and the law that governs the conduct during an armed

conflict (Jus in bello). This paper seeks to focus on jus ad bellum, address the

background of the Ukraine and Russia’s relations, establish the nature of the conflict

using the information present on the on going conflict, discuss the separation in

application of jus ad bellum and jus in bello in the context of the Russia-Ukraine

conflict, assess the engagement of Ukraine and Russia under the scope of

International Law, paying attention at whether Russia’s actions to resort to military

action against Ukraine are ‘legal’ and ‘justified’. Thereby unpacking jus ad bellum in

the context of the Ukraine and Russia conflict. Lastly it will unpack the international

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community’s reaction to the conflict paying attention at the enforcement of

international law in the contest of an on going armed conflict.

Introduction

Deep cultural ties, strategic diplomatic engagement, political arm-twisting and tag of

war have characterized the Ukraine and Russia relations since its inception. It is clear

that this relationship hasn’t been only diplomatic without any signs of conflict or

hostile engagement. Ukraine and Russia’s relations can be traced back decades before

the events of 2022,when Russia unleashed the biggest war in Europe since world war

II with the justification that modern, western-leaning Ukraine was a constant threat

and subjected the Russian-speaking population in the eastern part of Ukraine through

genocide. Hence the need to ‘de-Nazify’ and ‘demilitarize’ Ukraine by launching

what Russia regarded as a ‘military operation’1. Jus ad bellum establishes and sets

ground for conditions under which states may resort to war or to use of armed force in

general. The prohibition against the use of force amongst States and the exceptions to

it (self-defense and UN Authorization for the use of force), set out in the United

Nations Charter of 1945, are the core ingredients of jus ad bellum2. This paper will

address the background of the Ukraine and Russia’s relations, establish the nature of

the conflict using the information present on the on going conflict, discuss the

separation in application of jus ad bellum and jus in bello in the context of the Russia-

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Ukraine conflict, assess the engagement of Ukraine and Russia under the scope of

International Law, paying attention at whether Russia’s actions to resort to military

action against Ukraine are ‘legal’ and ‘justified’. Thereby unpacking jus ad bellum in

the context of the Ukraine and Russia conflict. Lastly it will unpack the international

community’s reaction to the conflict paying attention at the enforcement of

international law in the contest of an on going armed conflict.

Background of Russia and Ukraine Relations

From the beginning of the 20th century up to the present day Russia and Ukraine have

encountered and shared an unprecedented past filled with war, diplomacy, cultural

and political ties. There has been chain of events that one can carefully assess up to

the recent events of a Russia-Ukraine conflict in the beginning of 2022.This will not

only give context but will put the paint on the canvas as far as the tumultuous

relationship between Ukraine and Russia is concerned. In 1918 Ukraine gained its

independence from Russia recognized by the treaty of Brest-Litovsk.Although this

independence was short lived after it was subsumed into Soviet Union, it was the first

instance for the Ukrainians to experience independence from Russia.

From the 1920’s up to Russia’s acknowledgement of Ukraine’s independence in the

wake of surrendering the nuclear weapons under the Budapest Memorandum

1994,Ukraine experienced famine and was subjected under the power of the soviet

union through all the soviet wars3. In the midst of Ukraine and Russia relations

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understanding the history between nature and Russia helps to shape the complexity

and nature of the relationship between Russia and Ukraine with consideration of the

recent developments. After cold war in 1948 Europe became split into two divisions,

with United States backing Nato and the Warsaw Pact countries backing USSR.

Ideologically opposed, NATO and the Warsaw Pact developed their own defense

systems over time, stimulating an arms race that lasted for the whole duration of the

Cold War. However, these two organizations had never waged direct war, particularly

in Europe. Instead, the US and the Soviet Union, along with their allies, implemented

strategic policies aimed at containing each other in Europe while fighting for

influence on the international stage4. The seemingly alignment of Ukraine and Nato

reinvigorates the shared tension and history that exist between Russia and

Nato.Ukraine in its three decades of independence has forged its own path towards by

aligning itself with western institutions and allies. During this time Ukraine also failed

to deal with internal divisions as evidenced by the growing separatist movement that

started in the easternregion in 2014 after Russia occupied Crimea. There have been

claims raised which suggest that Russia was training and equipping these armed

groups5. The Eastern part of Ukraine has always been dominated by Russian-speaking

community favoring close ties with Russia. While the western region is more

nationalist Ukraine speaking population6. From 2014-2021 the Donbas region has

experienced a great deal of war and bloodshed, this was prompted by the occupation

of Crimea by Russia.

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Source: CIA World Fact book; World Bank

As Ukraine continued with its alignment with the western institutions like Nato and

European Union, Russia continued with its invasion efforts in 2022 by launching

attacks at Ukraine claiming that the Russian-speaking people in eastern Ukraine were

subjected to genocide by the Ukraine government. Hence launching a full-blown

invasion in order to ‘demilitarize’ and ‘denazify’ Ukraine7.

Nature of the Russia –Ukraine Conflict

It is without doubt that an armed conflict exist between Ukraine and Russia in

contravention of the Untied Nations Charter Article 2(4), which stipulates against

threat or use of force against the territorial integrity of another State8. As Russia’s

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president Putin declared military action against Ukraine under the pretext of

protecting the Russian-speaking people in the eastern part of Ukraine 9 . It is

fundamental to highlight that as much an armed conflict between Ukraine and Russia

can be clearly established now, there have been reports of Russia’s involvement in the

non international armed conflict between the Ukrainian government and the separatist

groups in the east. As they backed separatists fighting for control over much of the

two heavily industrialized regions of Donetsk and Luhansk, also known as Donbas

with arms and military equipment10. There is no clear evidence which pin points

Russia’s planned efforts in the Ukrainian internal conflict, only claims of military

equipment assistance and training. As much as this establishes that Russia has been

active in Ukraine internal affairs, it does not fully satisfy the overall control test that

needs to be established in order to regard the conflict as an international armed

conflict. ‘In order to attribute the acts of a military or paramilitary group to a State, it

must be proved that the State wields overall control over the group, not only by

equipping and financing the group, but also by coordinating or helping in the general

planning of its military activity11.’ Its involvement did not satisfy the overall control

threshold for it to be regarded as an international armed conflict.

With the nature of the Donbas armed conflict up for debate, the nature of this armed

conflict between Russia and Ukraine was made apparent by the events of that

transpired early 2022.Russia launched a military operation in Ukraine claiming that

this was not a full blown occupation of Ukraine but efforts to rescue and safeguard the

Russian speaking population in eastern Ukraine, which according to Russia was

subjected to genocide. Hence the need to ‘denazify’ and ‘demilitarize’ the region12.

It’s important to mention that early reports of Russia’s invasion established that

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attacks extended well beyond Ukraine’s eastern region, with explosions reported in

the capital Kyiv13. With all this evidence of Russia’s threat and use of force against

Ukraine, it is clear that an international armed conflict exist as enshrined by common

article 2 of the Geneva convention 1949 which states that ‘convention shall apply to

all cases of declared war or of any other armed conflicts which arise between two or

more of the high contracting states, even if the state of ear is not recognized by one of

them’14. Meeting this threshold is very clear and precise unlike non-international

armed conflict, which has many boxes that need to be ticked. Even without a clear

declaration of war by Russia against Ukraine the objective facts of Russia’s military

activity on Ukraine’s soil against Ukraine’s integrity and launching military attacks

against installations suggest for an international armed conflict. This is magnified and

supported by the Ljube Boskoski and Johan Tarculovski case, which highlights that

the existence of an armed conflict is determined primarily by what is actually

happening on the ground rather than any subjective elements surrounding the

conflict15. After this assessment it can be argued that the Ukraine and Russia conflict

that commenced earlier this year 2022, is an international armed conflict.

Separation in Application of jus ad bellum and jus in Bello in the context of the

Russia-Ukraine conflict

It is imperative to establish that there is a relationship between jus ad Bellum and jus

in Bello. As a clear understanding to the reasons used to resort to war can help

establish the motive and intentions of a party to an armed conflict thus the application

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and interpretation of the conflict. The nexus of these two concepts is highlighted

clearly by additional protocol i article 1(4) which states that, ‘The situations referred

to in the preceding paragraph include armed conflicts in which peoples are fighting

against colonial domination and alien occupation and against racist régimes in the

exercise of their right of self-determination, as enshrined in the Charter of the United

Nations and the Declaration on Principles of International Law concerning Friendly

Relations and Co-operation among States in accordance with the Charter of the

United Nations’16.

This article shows the range of circumstances in which jus ad bellum and jus in Bello

can be applied in an armed conflict. The dualist concept of jus ad bellum and jus in

Bello presents a simplified account of the sequencing and categorization of human

conduct throughout armed hostilities17. The first one jus ad bello specifically enacting

rules and obligations with regards to the need to resort to threat or use of force to

another party in an armed conflict. As established by Russia ‘s pretext and claims of

genocide against the Russian speaking population in eastern Ukraine as grounds to

launch a military attack against Ukraine. The same can be used to assess Ukraine’s

engagement as it resorted to self-defense by declaring martial law, vowing stiff

resistance against Russia’s actions18.

The second one jus in Bello regulates the conduct of parties engaged in an armed

conflict. International Humanitarian Law is synonymous with jus in bello; it seeks to

minimize suffering in armed conflicts, notably by protecting and assisting all victims

of armed conflict to the greatest extent possible through regulation of means and

methods of engagement between armed groups, states belligerent groups and

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insurgent groups involved in the conflict, hence calls for the application of Geneva

conventions, additional protocol i and ii among other international humanitarian law

19
legal instruments .In this regard the ICC made an official declaration of

investigation into the war in Ukraine looking at any form of violation of international

humanitarian law and international law at large20. It is fundamental to note that the

separation of these two concepts in armed conflict does not negate or neglect any

form of responsibility that these two concepts have as far as armed conflicts are

concerned. An assessment of the Ukraine war in the context of jus ad bellum will be

analyzed later in the course of this paper.

The engagement of Ukraine and Russia under the scope of International Law,

whether Russia’s actions to resort to military action against Ukraine are ‘legal’

and ‘justified’.

Resorting to war by Russia might have been a surprise to a lot of Sates in the

international community but no one doubted that for a long time there was a tension

between Ukraine and Russia. Russia’s declaration of what they regarded as a ‘military

peace operation’ against Ukraine was made under the pretext claimed by Russia that

Ukraine was subjecting the Russia speaking population in Ukraine under genocide

and human rights violations. This claim stemming from Russia’s alleged support of

separatist groups in Ukraine in the 2013 armed conflict against the central

government of Ukraine whose classification is up for debate. In order to carefully

assess Russia’s engagement and reasons thereof, it is important to acknowledge

Russia’s president remarks pursuant to his declaration of the attack on Ukraine. Apart

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from claiming that Ukraine was committing genocide against the Russia ethnic groups

in Donbas region, Putin recognized Donetsk and Luhansk, two separatist regions in

Donbas, as independent states and ordered Russian troops in for a ‘peacekeeping

operation’. He further states that Ukraine has never had its own authentic statehood

that is sustainable21.

It is under this context created by Russia that Russia’s declaration of its troops to

Ukraine can be argued as military intervention against what Russia regarded as a Nazi

regime. Military intervention has increasingly been justified by reference to

humanitarian purposes, reflecting a growth in both the potency of international human

rights norms and the willingness of the United Nations Security Council to consider

humanitarian crises as threats to international peace and security 22 . Unlike

Oppenheim’s view of military intervention as a good deed, motivated by the desire to

spread universal principles or to “right” a wrong committed within the boundaries of a

particular state23. Russia’s military declaration of a military operation in Ukraine as

military intervention against the alleged human rights violation and genocide is not

clear cut act based on factual assessment of the situation in the Donbas region.

Therefore there is a primal need to establish clearly whether there was genocide and

human rights violations by Ukraine to the Russian speaking population in Ukraine

that satisfy and warrant Russia’s actions of launching an attack? Also under the

pretext that Ukraine was committing these alleged crimes, does the existence of an

undemocratic or oppressive regime alone generate a prima facie right of intervention

on human protection grounds? These questions need to be answered, there has been a

growing trend in International Law were States use the right to protect and military

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intervention as grounds to launch aggressive actions and excessive their military

might.

In the context of the internal conflict in Ukraine between the central government of

Ukraine and separatist groups in the Donbas region. Apart from investigations, there

are no official reports from ICRC and ICC of genocide committed by the Ukraine

government in Donbas apart from reports of internal disturbances whose status is

subject for debate whether its an non international armed conflict or internal

disturbances under the international humanitarian law threshold24. As if this is not

enough, UN Charter article 39 establish that the Security Council shall determine the

existence of any threat to the peace, breach of the peace, or act of aggression and shall

make recommendations, or decide what measures shall be taken in accordance with

Articles 41 and 42, to maintain or restore international peace and security. In this

regard no decision was made by the United Nations Security Council to regard the

situation in Ukraine’s Donbas region as a threat to peace or breach of peace.

Apart from Russia’s claims of genocide no other country or international

organization claimed that an actual genocide and human rights violations were taking

place in Ukraine. Under this assessment it is clear that Russia’s action to launch

military operation in Ukraine was a preemptive reason to act aggressively against a

democratically elected government exercising control and sovereignty over their land

and internal affairs. Hence this attack was in contravention of International Law as

enshrined by the article 2(4) of the United Nations Charter which states that Members

shall refrain in their international relations from the threat or use of force against the

territorial integrity or political independence of any state, or in any other manner

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inconsistent with the Purposes of the United Nations25. Russia’s attack on Ukraine is a

perfect example of the abuse of the right to protect principle as justification for acts of

aggression against a sovereign state. During UN General Assembly debates in 2009,

delegates cited not simply the potential for the principle’s abuse by major powers to

justify aggression26.

After establishing that Russia’s attack on Ukraine was not just or legal its imperative

to establish that Ukraine’s actions of retaliating against invasion was warranted and

legal under article 51 of the United Nations Charter. This is also supported by ICJ in

the Nicaragua v. United States of America were it was established that “there is a

specific rule whereby self-defence would warrant only measures which are

proportional to the armed attack and necessary to respond to it, a rule well established

in customary international law”27. Therefore as long as Ukraine’s retaliation as acts of

self-defence are within the confines of International humanitarian law, their military

actions to fight back against Russia are legal under International Law.

Apart from historical ties between Russia and Ukraine, Russia has geopolitical and

security concerns over Ukraine’s potential engagement with western institution. This

is because Ukraine has been showing interest to join Nato, a military alliance between

European countries and two North American countries dedicated to preserving peace

and security in the North Atlantic area28. This partnership by Ukraine would mean

legally sanctioned military presents of NATO in Ukraine and deployment of strike

weapons systems near Russian borders. As much as this had positive security benefits

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it would be at the expense of Russia’s security interests. The proximity of the

Ukrainian and Russian border is shown on the map below.

Source: Institute for the Study of War <

https://www.understandingwar.org/backgrounder/ukraine-conflict-updates> Accessed

06.05.2022

From this map it is clear that Russia’s concerns are warranted and understandable, as

Ukraine’s engagement with NATO will automatically undermine Russia’s security

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considering the geographical location of Ukraine. This is further made clear by

Vladimir Putin with French President Emmanuel Macron, in which reiterated its

concerns of preventing NATO expansion, refusing to deploy strike weapons systems

near Russian borders, as well as returning the military potential and infrastructure of

the bloc in Europe to the positions of 1997 the year when the Russia-NATO Founding

Act was signed29. As much as the security threats for Russia are present, the big

question is didn’t they warrant an imminent attack of Ukraine?

Reaction and Enforcement of International Law pursuant to the Ukraine-Russia

conflict

It was inevitable for the conflict in Ukraine not to draw attention and immediate

reaction from the international community, as every State was monitoring the

sequence of events between Russia and Ukraine. Pursuant to Russia’s attack on

Ukraine, all States and International Organizations rushed to make their position clear

as far as the conflict was concerned. Majority of States regarded Russia’s actions as

acts of aggression against a sovereign country. This was made clear when the U.N.

General Assembly voted overwhelmingly in support of a resolution demanding

Moscow immediately stop its war against Ukraine. On a vote of 140 in favor, five

against and 38 abstentions, nations supported a text put forward by Ukraine with the

backing of more than 80 countries that also demands the protection of all civilians and

civilian infrastructure, as well as humanitarian and medical personnel and

journalists30.

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Pursuant to the United Nations Charter article (41)(42) On 8 April 2022, Council of

the European Union adopted a fifth package of sanctions against Russia, in light

of Russia’s continuing war of aggression against Ukraine and the reports of atrocities

committed by the Russian armed forces in a number of Ukrainian towns. The package

includes a ban on: imports from Russia of coal and other solid fossil fuels all Russian

vessels from accessing EU ports Russian and Belarusian road transport operators from

entering the EU imports from Russia of wood, cement, seafood and liquor exports to

Russia of jet fuel and other goods deposits to crypto-wallet31. It is vital to highlight

that not all States took retaliatory approach and chose sides, as China among others

establishing that it has always supported United Nations efforts to develop

partnerships with regional organizations, including OSCE, to address challenges in

peace and security. Noting the importance of enhancing mutual trust, he said

differences among States in national interests, social systems and ideologies should

not become an obstacle to dialogue or be a reason for confrontation. The world is

indivisible, security is indivisible, he said, adding that that principle must be upheld

and implemented under the current circumstances. The final solution to the crisis in

Ukraine is to respect the reasonable security concerns of all States and form balanced,

effective and sustainable European security architecture. Stressing that the world

does not need a new cold war, he said all countries must strengthen unity and work

together for a shared future for mankind. Moreover, the sovereignty and territorial

integrity of all States must be respected, and the purposes and principles of the

Charter observed32.

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Apart from condemning Russia’s acts of aggression, United States and its allies

among other countries shifted from providing small arms and defensive equipment to

hastily ratcheting up deliveries of heavy weaponry to Ukraine as the war intensifies.

On April 21, U.S. President Joe Biden pledged $800 million in additional weaponry

and $500 million in direct economic aid. More than $400 million in additional

military aid was announced on April 24 when Secretary of State Antony Blinken and

Defense Secretary Lloyd Austin met Ukrainian President Volodymyr Zelenskyy in

Kyiv, bringing the total U.S. military assistance since the beginning of the war to $3.7

billion33. It is also important to consider all the economic sanctions imposed on

Russia from the commencement of this conflict and the assistance that has been given

to Ukraine and make an objective assessment whether they have been mere efforts to

stop Russia’s aggressive actions in Ukraine or to weaken its super-power footprint as

far as economic development, geopolitics and diplomacy is concerned.

Conclusion

After unpacking the tension and conflict between Russia and Ukraine, it is in the lens

of International Law that it can be established that Jus ad bellum is an essential

concept to decipher, interpret and decide the application of law in any conflict. It

exposes the intention of the parties in a conflict and the temperament, which

surrounds the conflict. Jus ad bellum is essential element as far as international

humanitarian law is concerned. Through an unwavering referral of jus ad bellum in

any conflict, the exploitation of International Law principles as pretext to engage in

aggressive actions is exposed and the shortcomings of International Law can only be

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solved in practice. In this regard Russia’s pretext under Jus ad bellum doesn’t satisfy

any right for military presence or operation in a sovereign country, hence Russia’s

attack on Ukraine is not just nor legal. The conflict in Ukraine reignites the grey area

surrounding military intervention, responsibility to protect principle and the

International Law mechanism assessing and establishing that military presence in

another country is warranted for human rights grounds.

References:
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2
ICRC, International Humanitarian Law: Answers To Your Questions 2015,pp8
3
The New York Times, Matthew Mpoke Bigg 26/03/2022, ‘ A history of the Tensions between Ukraine and
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Council on Foreign Relations, Jonathan Masters 01/04/2022, ‘Ukraine: Conflict at the Crossroads of Europe and
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Bloomberg, Patrick Donahue 03/03/2022, ‘Understanding the Roots of Russia’s War in Ukraine’<
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8
United Nations Charter article 2(4)
9
Ibid
10
Crisis group, ‘Conflict in Ukraine’s Donbas: A visual Explainer’, <
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ICTY, The Prosecutor v Duško Tadic, Appeals Chamber, Judgment, IT-94-1-A, 25 July 1999, §131
12
Bloomberg, Patrick Donahue 03/03/2022, ‘Understanding the Roots of Russia’s War in Ukraine’<
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quicktake> Accessed 21.04.2022
13
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https://foreignpolicy.com/2022/02/23/putin-ukraine-russia-invasion-military-operation/> Accessed 21.04.2022
14
Geneva Convention IV, Common Article 2(1)
15
The Prosecutor v Ljube Boškoski and Johan Tarčulovski, Trial Chamber, Judgment, IT-04-82-T, 10 July 2008,
§174, ICTY, The Prosecutor v. Fatmir Limaj et al., Trial Chamber 11 (Judgment), Melzer Nils (2016) International
Humanitarian Law a Comprehensive Introduction. Geneva: ICRC pp. 57
16
Additional Protocol 1 1977, Article 1(4)
17
Carsten Stahn, ‘Jus ad bellum’, ‘jus in bello’ . . . ‘jus post bellum’? –Rethinking the Conception of the Law of
Armed Force, European Journal of International Law, Volume 17, Issue 5, 1 November 2006, Pages 921–
943, https://doi.org/10.1093/ejil/chl037
18
Crisis group, ‘Conflict in Ukraine’s Donbas: A visual Explainer’, <
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19
ICRC, International Humanitarian Law: Answers To Your Questions 2015
20
International Criminal Court, Investigations situation in Ukraine, Situation referred to the ICC by 43 States
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Electronic copy available at: https://ssrn.com/abstract=4132649

21
Business Insider South Africa, Kelsey Vlamis ,’Why is Russia attacking Ukraine?..’,<
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22
Just and Unjust Military Intervention: European Thinkers from Vitoria to Mill Stefano Recchia, Jennifer M.
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24
Common article 3 Geneva convention 1949, additional protocol ii 1979
25
United Nations, Charter 1945,Article 2(4)
26
E.g., see the resolution proposed by the Group of 77 developing states and passed by the General Assembly (as
resolution 63/304) during the meeting of July 23, 2009, A/63/ PV.97, as well as the subsequent discussion,
available at www.responsibilitytoprotect. org/index.php/document-archive/united-nations. Quoted phrases from
remarks by Valero Briceño of Venezuela at A/63/PV/99, p. 3.
27
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (I.C.J.
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28
NATO, < https://www.nato.int/cps/en/natohq/declassified_139339.htm> Accessed 06.05.2022
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30
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31
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https://www.consilium.europa.eu/en/policies/eu-response-ukraine-invasion/> Accessed 06.05.2022
32
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33
Arms Control Association, ‘Allies Step Up Military Sport for Ukraine’< https://www.armscontrol.org/act/2022-
05/news/allies-step-up-military-support-ukraine> Accessed 06.05.2022

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