By Srijan Sharma
The concept of contingent sovereignty which says that sovereign rights and immunities are not absolute. They depend on the observance of fundamental state obligations.
The Russian Ukraine War is going to complete 6 months and has raised full throttle discussions over it. The International Court of Justice has condemned Russia’s actions and ordered an immediate withdrawal of troops from Ukraine. Therefore, the question of legality of Russian actions deserves merit to be discussed.
What UN Charter Says?
United Nations Charter of 1945, in article 2(4), prohibited “the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”. The United Nation straightway prohibits war; however, UN does not fully close the doors for aggression or presses for prohibition rather United Nations under the charter have established due procedure to respond to aggression through armed measures. UN is empowered under article 39 to determine the existence of any threat to the peace, breach of the peace, or act of aggression. It may make recommendations or decide what measures (including the use of armed force) shall be taken. The decision rests upon the UNSC.
Applicability of Article 51 of UN Charter
The Article 51 of UN Charter reads Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Article 51 grants states the right to exercise self-defence. In such cases States have resorted to defend and protect their sovereignty, security from terrorists and have taken armed measures against non-military targets and hence Self Defence is convincingly justified; but is it justified in the present scenario? The answer is straight no because there are territorial and strategic interests of Russia (Donbas Region). It is a well settled fact that Article 51 cannot be used for territorial gains rather for securing and responding to an attack by a state or violent non-state actors against a state. In this regard Security Council resolutions 1368 (2001) and 1373 (2001) have formally endorsed the view that self-defence is available to avert terrorist attacks such as in the case of the 9/11 attacks. Even if Russia argues that use of force is done in the response of genocide then it makes the case of humanitarian intervention for which UNSC nod is required. Though critics argue that such an act of unilateralism was exercised by the United States in the past, Libya Kosovo etc.
Looking Through ICJ Lenses
ICJ prima facie did not decide on question of genocide, the court did raise its eyebrows on the fact that whether a country can unilaterally use force against another country for preventing an alleged act of genocide. This indicates that Russia’s use of force is difficult to justify under the Genocide Convention. However, there is no strict and effective measure to enforce ICJ decisions, it has to go through UNSC in which Russia is the permanent member. The question still remains - Is there legality to war? Or does even full prohibition of war exists? Even if it partially exists no mechanism or institution is able to even control that partial fraction of war.
No Full Prohibition of War: Russia Seeking Refuge in Interpretations
There is no full prohibition to war there are certain legal escape routes that can circumvent the UN Charters, ICJ Rulings etc. That is the Principle of Military Necessity Under International Humanitarian Law. This principle permits the legal use of force to achieve military objectives. Further, principles of military necessity are only implemented as a last resort when all agreed political and diplomatic channels collapse. The following is the explanation on merits which justifies Russian actions under the umbrella of interpretations.
1- Russia says meaningful dialogue cannot be initiated now through diplomatic and political means because over the years the agreements have failed. Russia’s apprehensions of Ukraine waging a genocide in Donbstek makes the situation appear a military necessity. The speech of Head of Main Operations Directorate of General Staff of Armed Forces of the Russian Federation Colonel General Segi Rudskoy deals with the issue.
2- Russia says that It has launched a special military operation to target military and strategic installations of Ukraine Government and Military and nowhere says that the operation is aimed against people of Ukraine.
3- The case of collateral damages fits in the present case. Russia has no intent to harm or directly target the people of Ukraine. Damages and loss of life direct result of unintentional damage which has been inflicted upon by Air Strikes/ Artillery fire.
4- The concept of contingent sovereignty which says that sovereign rights and immunities are not absolute. They depend on the observance of fundamental state obligations. These include the responsibility to protect the citizens of the state. When a regime makes war on its people or cannot prevent atrocities against them, it loses its claim to non-intervention. In such a situation, the responsibility to protect may fall on the international community.
Srijan Sharma is working as an Research Analyst at India's oldest and prestigious national security and strategic Think Tank United Service Institution Of India (USI).