The laws of war are rarely respected, which does not mean that the States that violate them usually try to find a legal justification for their military interventions to cover their backs and give them a patina of legitimacy. This has meant that throughout history all kinds of excuses to go to war. She did it United States after the sinking of USS Maine in the port of Havana in 1898, attributed by its tabloids to the Spanish colonial forces; with the incident of Gulf of Tonkin (1964), fabricated by its intelligence services to attack the communist regime in North Vietnam, or with non-existent massive destruction weapons who paved the invasion of Iraq in 2003.
But Russia has not escaped the same temptation either, as was seen in 2008 with its military incursion into Georgia to support the pro-Russian breakaway regions of South Ossetia and Abkhazia arguing that its citizens were being victims of a ethnic cleansing campaign by the Georgian Army. Or years later, in 2014, when justifying the invasion and subsequent annexation of crimea by the need to protect the Russophone or ethnically Russian population of the peninsula from the “fascist” attacks by Ukrainian ultra-nationalist militias.
The script repeats itself now in the Ukraine, just as unconvincingly as then. And it is that the laws of war, codified in the International human rightthey only endorse the use of force by the States in two cases: the self defense in response to an armed attack, and the preservation of world peace and security sanctioned by the UN Security Council. None of these presuppositions occurs in Ukraine, where Putin has accused the Kiev government of perpetrating a “genocide” against the Russian population of the self-proclaimed republics of Luhansk and Donetskin the region of donbas.
Unilateral humanitarian intervention
“The most ironic of all is that, even if Putin’s arguments were true, which they are not, they would still not provide a legal justification for the use of force in Ukraine,” Kevin Jon Heller, special adviser to the Court, tells this newspaper. International Criminal Law and Professor of Humanitarian Law at the University of Copenhagen. “Basically what he proposes is the right to unilateral humanitarian intervention to protect innocent civilians, a concept hotly contested in humanitarian law and with little support unless authorized by the Security Council.
Russia has traditionally condemned the very doctrine that it now champions, as it did during the NATO intervention in Kosovo in the 90s. At that time dozens of countries ended up endorsing the so-called “corrective secession“ of the Serbian province as only remedy to stop the systematic persecution of its Kosovar Albanian citizens. “Putin is now using the same rhetoric in Donbas that the West used in Kosovo. It may not be legally correct, but it’s not entirely unreasonable either,” says Heller.
Recognition of breakaway regions
That would explain why Putin recognized on Monday the “independence” of the two secessionist regions, locked in a civil war against the Ukrainian army for eight years. Legally the Russian maneuver it is not valid internationallybut could provide additional pretexts to justify a full-scale invasion of the Donbas. An invasion that in the eyes of the US, it has already beguna thesis reinforced by the Kremlin’s announcement to deploy troops in the region “on a mission of peace”. And it is that the humanitarian law recognizes the right of sovereign states to invite third countries to join your collective defense against foreign aggression. The problem with this line of argument is that neither Ukraine is a foreign power in the Donbas nor are Lugansk and Donetsk sovereign republics.
But the strategy serves to shore up its ultimate goal: to recover the sphere of influence that the Soviet Union had in Eastern Europe during the cold war. Hence his demands so that the NATO withdraw from the region or guarantee that it will never integrate Kiev into its alliance. As the United States did in Latin America for much of the last century, Putin aspires that no one but Russia can interfere in his backyardeven though these countries are sovereign states with the right to choose their alliances.
That would also explain why Putin re-presented the Ukrainian state as a fiction on Monday, the product of a historical mistake by Lenin that would have left Russia without an inseparable part of its territory. And it is that, by denying Ukraine’s independence, he is implicitly denying its right to carve out its own path.
What is clear is that with the invasion of its Slavic neighbor Russia is committing a crime of aggressiontechnically punishable by International Criminal Courtl (CFI) and the twenty countries that have incorporated it into their legislation and have embraced the universal jurisdiction. It is highly questionable, however, that potential legal threat go and dissuade Putin. “Aggression is perhaps the most difficult crime to prosecute because the ICC has limited jurisdiction in this regard and because most States are not interested in prosecuting it, since, being a State crime, it is not individuals who are judged but an entire country”, recognizes Keller, the ICC adviser .