The Attack on Ukraine and the United Nations Charter

Vladimir Putin’s assault on Ukraine has had many victims. Physically, there have already been a significant number of dead and wounded Ukrainian soldiers and civilians as well as Russian soldiers. In addition to the dead and wounded, there is the physical destruction wrought by bombing and street fighting. Beyond the physical, there is the shock for Ukrainians who had their day-to-day lives upended and the numerous Ukrainians who quickly packed and left.

Even if one accepts Russia’s takeover of South Ossetia and Abkhazia in Georgia (neither region spoke Georgian and they were relatively autonomous), or the annexation of Crimea (it was historically part of Russia until 1954), or even if one accepts Russia’s defending Luhansk and Donetsk in eastern Ukraine where mostly Russian speakers live, the current invasion is on another level.

The Russian assault is a frontal attack on the international state system and world order. Since the 1648 Peace of Westphalia, state sovereignty has meant that countries should not forcefully interfere in the internal affairs of another country. While numerous violations can be shown historically, the post-World War II system, articulated in the United Nations Charter, clearly outlines the do’s and don’ts of state behavior.

Most relevant to the Russian invasion is the flagrant violation of the Charter’s prohibition on the use of force. The prohibition is found in article 2(4) of the United Nations Charter and is accepted as well in customary international law. Article 2(4) of the UN Charter states: “All 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 inconsistent with the Purposes of the United Nations.” The Article is considered a foundation of the international system.

The only exception to the prohibition on the use of force is Article 51 which permits the use of force in self-defense: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense 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.”

In addition to the Charter, the 1975 Helsinki Accords, signed by the Soviet Union and other European countries, clearly recognizes the territorial sovereignty of states and the inviolability of frontiers. It unambiguously re-iterates the prohibition of the threat or use of force.

Despite signing the UN Charter as well as the Helsinki Accords, Russians maintain that Ukraine is not a state. This was argued by a Russian spokesperson in 2008 and reiterated in an article and a recent speech by President Putin. For Putin, Russia and Ukraine are one country. The Russians are also maintaining that the “special military operation” in Ukraine is to protect people in Luhansk and Donetsk in eastern Ukraine.

How will the international system react to this flagrant violation of the UN Charter and Helsinki Accords? In New York, because the Security Council is blocked by the Russian veto, the crisis has been taken up by the UN General Assembly in a rare emergency special session. In Geneva, the UN Human Rights Council (HRC) voted to take up the crisis as a priority at its regular 49th session.

In her opening statement to the Council, the Belgian foreign minister Sophie Wilmes vehemently denounced the invasion as “a flagrant violation of international law and the Charter of the United Nations.”

The 47 members of the HRC are not blocked by potential vetoes. Consequently, there is a serious possibility of the Council establishing a commission of inquiry on Russia for the illegal use of force as well as serious human rights and humanitarian law violations. This type of inquiry could lead to charges of war crimes against Putin and Russia. A spokesperson for Amnesty International Switzerland indicated that his organization has examined video evidence showing obvious violations of human rights and humanitarian law that could constitute war crimes.

Will the international system be able to stop the invasion? Probably not. The sanctions applied by the United States, the European Union and other countries (including neutral Switzerland) may not convince Putin to change course. He seems bent on taking over Ukraine just as he has done in Crimea, South Ossetia and Abkhazia. But, and this is a big but, Ukraine is a recognized sovereign country.

The threat of possible war crimes may not stop the invasion. The financial and economic sanctions will have immediate effects, but the specter of a trial or trials for war crimes cannot be ignored.

If the international system cannot respond to Russia’s ignoring its most basic rules, then the invasion will have inflicted a profound, perhaps fatal wound to the post World War II system.

Daniel Warner is the author of An Ethic of Responsibility in International Relations. (Lynne Rienner). He lives in Geneva.