The prohibition on the use of force is still breathing

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From time to time, especially in the midst of an ongoing armed conflict, commentators point out, that international legal principles and norms are guiding principles at best, and the most important rules, such as the general prohibition on the use of force, which is enshrined in Article 2(4) of the United Nations’ Charter and customary international law, possibly with a peremptory character are ineffective. As an illustrative example, Thomas M. Franck stated in the 1970’, that the prohibition on the use of force is dead. Some 30 years later––a reincarnated––prohibition died again in the war in Iraq. Yet again, another 20 years later, the still living and breathing prohibition was still at risk.

 

This brings us to the international armed conflict between the Russian Federation and Ukraine started in 2014 with the annexation of Crimea, which continued with a full-scale aggression launched from several directions on 24 February 2022. It is not a question, that Russia––and Belarus for that matter––has violated the prohibition on the use of force, since the legal justifications submitted by Russia to the Security Council cannot stand the test of jus ad bellum.

 

Against this background, a recent submission to this blog argued, that international law cannot and will not stop the invasion of Ukraine and “[i]nternational regulations work best as guiding norms for states toward each other. However, it would be naive to imagine that these norms can be enforced and protected by the guarding institutions that lack unquestionable engagement and will of the states.” While we are not contesting these considerations, we would like to point out a few––in our opinion interesting developments––which can reinforce our faith in international law, not as something designed to stop ongoing aggression, but rather as a common language and framework for states in which each action has an equal and opposite reaction.

 

First, we would like to point out, that even though one can relatively easily dismiss the legal arguments advocated by Russia to justify their invasion, it needs to be highlighted, that President Putin still referred to norms of international law to justify the actions of his country, and cited very similar notions to what Western powers have used in the past 20 years for instance in the fight against terrorism. These claims were not effective then and certainly not effective now, but the fact that Russia is still using jus ad bellum language and arguments, reinforces the system itself. This further shows that the problem is not with the binding nature of these norms, but rather their enforcement. This is clear from the Russian arguments, since they did not call into question the applicability of jus ad bellum norms, or even denied their existence, instead they offered a flawed, but still jus ad bellum narrative. For us, this demonstrates, that international law is much more than just ‘guiding norms’, it is indeed a reality.

 

Second, in 2014, the United Nations’ General Assembly adopted a Resolution on the annexation of Crimea, in which––among others––it called on all states to refrain from the violation of the territorial integrity of Ukraine, but failed to mention Russia as the aggressor. The Resolution was adopted with 100 votes in favor, 11 against with 58 abstentions.

 

In comparison, the 2022 invasion met with a significantly starker response. The similarly adopted General Assembly Resolution called upon Russia to stop the use of force and condemned the actions of the state. The Resolution received 141 votes in favor, 5 against with 35 abstentions. Later on, a large number of states imposed sanctions on Russia and as of today no state has recognized the newly formed Peoples’ Republics in Eastern Ukraine.

 

This example shows that blatant violations of international law will meet with a genuine condemnation from almost all members of the international community. The significant difference in numbers in the two resolutions can however mean many things, including but not limited to the fact that the international community accepted the Russian narrative of the annexation of Crimea to a certain extent and/or the actions taken were not clearly disproportionate and unnecessary in contrast with the invasion that is taking place at this very moment as well.

 

In conclusion, yes, international law, and specifically the prohibition on the use of force was unable to stop the armed attack against Ukraine from happening, but international law is much more than just a set of guiding principles. It is a common language states use even when they are fully aware that their actions are inexcusable, and the international community indeed reacts to such flagrant violations with considerable unanimity. These responses are not just words, but part of framework, a basis on which sanctions have been and will be implemented against the Russian Federation, should the aggression continue. Save an armed conflict, the Western powers with a possibility of a third world, even nuclear war, this seems effective enough at the moment.

Bence Kis Kelemen is a senior lecturer at the University of Pécs (Hungary) teaching international and European law. He received his PhD in 2022 with a dissertation in the topic of targeted killings in international law. His current research interests are the applicability of international law to cyberspace and the protection of personal data.

Mátyás Kiss is a law student at the University of Pécs (Hungary). His current research interest is the relationship between cyber operations and the jus ad bellum.

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