Is Ukraine a War Crime or Business as Usual?

The war in Ukraine intensifies. This looks like a protracted conflict with the potential for a larger global confrontation. Although stated aims and actions on both sides have evolved and will evolve, two clarifications show the dangers of oversimplified popular accounts of what is taking place.

There are two conflicting narratives about Ukraine. The first narrative – the idealistic, legal point of view that is repeated frequently by the West – is that Ukraine is a sovereign country that can independently choose its foreign policy. If it wishes to be closer to Europe, either joining the European Union or NATO, that is its choice. As a sovereign nation since 1991, Ukraine is free and independent.

The second narrative – aligned with Realpolitik – is that major powers have spheres of influence around their borders. While there are no legal bases for this position, it is customarily recognized that countries such as the United States, China and Russia cannot have hostile threats close to them. Major powers have stated this and acted on its assumptions throughout history.

The conflict between the two narratives is obvious. While Ukraine is an independent country that theoretically has the right to choose its foreign policy independently, Ukraine’s joining NATO or the European Union would be perceived by Moscow as a threat to its security.

The two narratives, one idealistic and the other pragmatic, are in opposition.

Historically, there is evidence that the United States’ emphasis on Ukraine’s independence does not coincide with U.S. past actions. Cuba was an independent country in the 1960s. As an independent country, Cuba had the sovereign right to invite the Soviet Union to place missiles on its territory. If Ukraine is free and independent to make its security choices, why couldn’t Cuba?

The answer to the question is obviously sphere of influence. The United States did not accept Soviet missiles near its border because that was perceived as a threat to its security. The United States clearly stated in the 19th century Monroe Doctrine that it would accept no European interference in its sphere of influence, just as today it would never accept foreign military equipment on its borders with Canada or Mexico.

Is there proof that the United States has accepted Russia’s sphere of influence on its borders? Absolutely. As part of the end of the Cuban missile crisis, the United States withdrew its missiles on the border of the Soviet Union in Turkey, recognizing that Moscow perceived the missiles as a threat to its security. Part of the deal that resolved the Cuban crisis was that the Soviet leader Nikita Khrushchev would withdraw missiles from Cuba and that President Kennedy would withdraw U.S. missiles from Turkey. The United States and Russia recognized the sphere of influence of the other.

By emphasizing Ukraine’s independence and freedom to choose its alliances, the United States no longer recognizes Russia’s sphere of influence on its border, which goes against its own historical positions concerning its borders and Russia’s.

The second clarification deals with the war itself. Russia is being accused of everything from crimes against humanity to genocide. But here another distinction is helpful. There are two parts to the legal aspects of wars. The first is jus ad bellum, the law prohibiting the right to wage war. The second is jus in bello, the law applicable in war.

The use of force is clearly against the United Nations Charter except in self-defense. Russia is arguing that Ukraine’s European leanings are threatening its security, so it is acting in self-defense. But its invasion of Ukraine can be argued to be disproportional to the perceived threat.

The international lawyer Philippe Sands and others have argued that Russia’s invasion is an act of aggression – originally called a “crime against peace” – which should lead to the trial of Vladimir Putin and other leaders for the international crime of aggression. But this crime has rarely been prosecuted. As Sands points out: “When the ICC [International Criminal Court] statute was adopted in 1998 a decision was taken not to give the ICC jurisdiction over the crime of aggression because certain large powers were worried: is it going to turn on us?” Also, technically, Russia cannot be held responsible for a crime of aggression because it has not ratified the statute.

The April 12 report to the Organization for Security and Co-operation in Europe (OSCE) by three experts does hold Russia responsible for the “unlawful attack” and a violation of jus ad bellum: “Russia is the aggressor and therefore responsible for all human suffering in Ukraine, whether or not it results from violations of IHL [International Humanitarian Law] and even when it is directly caused by Ukraine, because even that would not have occurred if Ukraine had not to defend itself from the Russian invasion.”

Most condemnations of Russia’s actions focus only on jus in bello, how they are carrying out the war. Killing civilians, organized rape, bombing schools and hospitals, all fall under war crimes and crimes against humanity. In this respect, the OSCE experts also note that “both Russia and Ukraine are States, the armed conflict between them is governed by IHL of international armed conflicts (IACs), foreseen in particular in the four Geneva Conventions and Additional Protocol I to which they are both parties, as well as the large body of customary international law rules applicable to such conflict.” Neither Russia nor Ukraine can argue that they have no treaty obligations to respect International Humanitarian Law in the conflict.

Emphasis on the numerous jus in bello violations by Russia avoids its jus ad bellum violation. The principal argument against Russia should be on the initial invasion. The act of going to war or invading sets in motion a series of violations. As Andrew Clapham has brilliantly shown in his latest book, War, the violence of war is itself a violation of human rights. While we can argue about war crimes, crimes against humanity up to genocide and all violations of jus in bello, it is the very act of jus ad bellum that sets in motion violations of human rights and international humanitarian law. The big issue in the current conflict, as Sands argues, is “the waging of an illegal war.”

These clarifications will not stop the war nor reduce the possibility of escalation. They might, nonetheless, help understanding what has become the major geopolitical event of the 21st century and help set a precedent to stop future aggressions.



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