President Putin should defend the special military operation at a special international law forum
The special military operation in Ukraine has been condemned by hundreds of international law scholars, such as John B. Bellinger III, from the Council on Foreign Relations in Washington DC, and Elizabeth Wilmshurst, from Chatham House in London. They argue that the special military operation is an illegal aggression against Ukraine:
President Putin publicly denies this charge. He says that Russia is legally helping the independent states of Donetsk and Lugansk People’s Republics to defend their sovereignty, against aggression from Ukraine:
President Putin should go one step further, and defend the special military operation at a special international law forum. This move will strengthen Russia’s stance, promote international law, especially the principle of territorial integrity, and develop a multipolar world order.
In preparation of this special forum, I will elaborate Putin’s legal argument. In his declaration of “special military operation”, Putin invoked article 51 of the UN Charter, chapter VII, which says:
“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, (…)”
In their rebuttals, Bellinger and Wilmshurst recalled that article 51 of the UN Charter only grants self-defense rights to United Nations members. DNR/LNR are not UN members, so they can’t trigger article 51.
In response, on April 26, Vladimir Putin clarified his legal argument, by invoking the Kosovo case:
(Note: in YouTube videos, you can add captions in English, following the tutorial here)
Like DNR and LNR, Kosovo isn’t a UN member. However, Kosovo is hosting a large NATO and US military base at Camp Bondsteel, under a 99-years lease:
Taiwan is another interesting case. Taiwan is not a UN member, but still benefits from an official military commitment by the United States, known as the Taiwan Relations Act, since 1979. At the same time, Taiwan is not recognized as a sovereign state by the United States. However, in practice, the US President Joe Biden is still threatening the People’s Republic of China of triggering this military legal document, in case of a Chinese “non-war military operation” in Taiwan:
Bellinger and Wilmshurst would build better credibility as trusted experts, if they also discussed the legality of Joe Biden’s explicit threats against China’s territorial integrity, in their attempts to debunk Vladimir Putin’s legal claims. There’s some degree of symmetry between the two.
From the viewpoint of international law, the Kosovo case is even more fascinating than Taiwan, because Kosovo was addressed by the International Court of Justice in 2010. Serbia asked the ICJ:
“Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of Kosovo in accordance with international law?”
The Court answered that “the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law”.
The Court stated that “the scope of the principle of territorial integrity is confined to the sphere of relations between States”. Since Kosovo was not a state at the time of unilateral declaration of independence, then this declaration could not violate international law, although it violated Serbian domestic law.
Likewise, the unilateral declarations of sovereignty of Donetsk and Lugansk People’s Republics, of 7 April 2014, don’t violate international law, although they violate Ukrainian domestic law.
That’s an observation that neither Bellinger nor Wilmshurst did.
Of course, unilateral declarations of independence can sometimes violate international law. For example, the Turkish Republic of Northern Cyprus declaration of independence is made internationally illegal by the UN Security Council resolution 541.
In the cases of DNR/LNR, there’s no such issue. However, Putin would be wrong to automatically conclude that Russia can provide military assistance to DNR/LNR without violating international law. That’s a separate legal question:
Are the Treaties of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Donetsk/Lugansk People’s Republics in accordance with international law?
The Kosovo ICJ opinion explicitly refrained from addressing the “validity or legal effects of the recognition of Kosovo by those States which have recognized it as an independent State”, because it “is not required by the question”. So the Kosovo ICJ opinion gives no guidance on the validity of the Russia-DNR/LNR treaties.
With the Kosovo case, the ICJ left open a dangerous legal vacuum, which got filled by the individual legal judgement of each sovereign state.
At that time, Putin himself warned: “They have not thought through the results of what they are doing. At the end of the day it is a two-ended stick and the second end will come back and hit them in the face”.
For example, the United States recognized Kosovo, because it “considers Kosovo to be a special case that should not be seen as a precedent for other situations. The sequence and nature of events that led to Kosovo’s independence were themselves unprecedented.”
Other countries, like Ukraine, refused to recognize Kosovo, because they were “committed to the principle of absolute respect for the sovereignty and territorial integrity of all states” (however, if both Kosovo and Ukraine join NATO, then Ukraine will need to renounce to this principle).
In order to address the special military operation, the special international law forum needs to dig deep into Russia’s justifications for recognitions of the DNR/LNR. That’s something the ICJ carefully avoided in the Kosovo case, fearing a legal quagmire.
For example, Putin can argue that the DNR/LNR are also “special cases”. The level of resurgence of Nazism in Ukraine is unprecedented. The struggle against Nazism is the special founding moment of the United Nations:
The Soviet Union made a special sacrifice, with 68 times more victims than the United States (27 Million vs. 400,000 deaths), to achieve the United Nations victory. Without them, the United Nations organization would not even exist:
Russia, as the successor state of the Soviet Union, has a special responsibility to prevent the resurrection of Nazism, especially because Ukraine is destroying its own Red Army heritage.
This special situation is what could make the recognitions of DNR/LNR, and the military operation in Ukraine, so “special”.
Alternatively, Vladimir Putin can argue that the DNR/LNR are not special cases, after all. They can fit in the category defined by Kosovo.
The sequence and nature of events that led to Kosovo’s independence might have been unprecedented in 2008, when the US Department of State proposed this bold argument for recognition, but not in 2022, after so many terrible things happened in Ukraine.
For Putin, this alternative argumentation is interesting with respect to an ongoing ICJ case: in an attempt to debunk Putin’s legal justification, Ukraine filed a complaint against Russia in the ICJ, for false accusation of genocide.
However, even if events in Donbass are not a genocide according to article 2 of the 1948 Genocide Convention, they can still be a Kosovo-genocide. In this case, DNR/LNR would belong to the same category as Kosovo for statehood rights. That would be enough to legalize the special military operation in Ukraine, if the special international law forum accepts the US case for Kosovo independence, like Bellinger, Wilmshurst, and other Putin critics did.
The ICJ still didn’t answer whether a genocide happened in Kosovo, in the sense of the Genocide Convention. Furthermore, the International Criminal Tribunal for the former Yugoslavia (ICTY) didn’t condemn anyone for genocide in Kosovo.
However, by definition, a Kosovo-genocide happened in Kosovo. So is Donbass the new Kosovo?
I will make a head-to-head comparison Kosovo vs. Donbass in the next article.