The Russian invasion of Ukraine is in clear violation of the rules governing the use of force enshrined in the United Nations Charter. This adds to the list of previous violations of the prohibition of the use of force. Previous violations met with contradictory responses. Often the powerful states that were involved justified the use of force. These include the violations in the contexts of Kosovo, Iraq, Libya, and Syria. The Russian invasion of Ukraine is another instance of such violations and justifiably draws condemnations. However, Western states and their allies insist on the singularity and egregiousness of the Russian invasion of Ukraine. Yet, not all states have been so emphatic and quick in responding to the invasion. Many maintain some sort of relations with Russia despite the extensive unilateral sanctions in place. This post critically examines the position that seems to be taken by Western states as to the singularity of the Russian invasion. It does so by discussing a very carefully articulated and developed argument about this singularity by Ingrid (Wuerth) Brunk and Monica Hakimi, in their editorial introduction for the October 2022 agora on Ukraine in the American Journal of International Law. They offer perceptive observations on the issue. They contextualize the Russian invasion and present the gravity and, particularly, the specificity of the matter in comparison to previous violations. This post attempts to critically evaluate their arguments and underline problems with some of their views.

While agreeing with the similarity of illegality between the past violations and the Russian invasion, Brunk and Hakimi observe that the ‘invasion of Ukraine is unlike the others.’ They differentiate between other violations and the Russian invasion for two reasons: firstly, the Russian invasion is a clear repudiation of the norm at the core of the UN Charter system on the use of force which prohibits forcible annexations of foreign territory; secondly, it does not have any limiting principles as was the case with previous violations of article 2(4). Therefore, this is unprecedented in the post-World War II order, and it threatens the stability of borders around the world. There cannot be much disagreement with Brunk and Hakimi on the gravity of the Russian invasion, its blatant violation of rules governing the use of force, and its future implications. However, what is problematic with their analysis is the characterization of the Russian invasion as significantly different from Kosovo, Iraq, and other instances and the reasons they provide for such characterisation. Their arguments are problematic on the following grounds.

Firstly, they exceptionalise the Russian invasion. They argue it is exceptional because the invasion is aimed at annexing the territory, a prohibited act in the United Nations Charter. However, the exceptionalisation of a situation is not new to international law, at least in the last few decades. Exceptionalism is used to characterise a situation in a particular way, justify certain actions, and deny certain rights. Exceptionalism became a convenient device in the ‘fight against terrorism’ for denying the protection of Geneva Conventions to detainees; it was deployed to justify torture in dealing with ‘dreaded terrorists’; and it was also an argument for targeted killings blurring the distinction between civilians and combatants. One can add the rhetorical ‘war on terror’ to this list. The argument of weapons of mass destruction in Iraq is another example. This is not to equalise all these exceptions or to trivialise the grave consequences of the Russian invasion. This is to underline that the argument of exceptionalism in international law has a history of doubtful legitimacy and legality, and selectivity. By characterising a particular situation as an exception, Western states resorted to measures of questionable legality in the past. Therefore, exceptionalising Russian invasion can lead to conjecturally suspect that the Western states may premise their response on this exceptionalism and disregard international law obligations.

Secondly, Brunk and Hakimi are of the view that the Russian invasion is without any precedent in the post World War II era. While they recognise that Iraq attempted to annex Kuwait in 1990, they still consider the Russian invasion an incident without precedent. Thus, they state that ‘this invasion is not just another in a long string of violations of Article 2(4)’. Their statement clearly delinks the Russian invasion from the previous incidents and presents it as a rupture from the past. However, the fact is that the past violations laid the necessary ground for Russian justification. One may dismiss Putin’s reference to the illegality of operations in Kosovo, Iraq, Libya and Syria as factitious. However, they remain glaring instances of violations. From a non-western lens, these past violations have sufficient historical and political weight in assessing the Russian invasion. It is not to argue that if these violations had not occurred in the past, Russia would not have used force against Ukraine. Russia might still have gone ahead with attacking Ukraine. However, it can be fairly assumed that those on the sidelines on the issue now would have had lesser legitimacy than what it is today. Those opposing or abstaining in the United Nations voting and not condemning Russia outrightly would have had weaker justifications than what they may offer today. There is also another, maybe unintended but, significant consequence of Brunk and Hakimi’s argument that ‘this invasion is not just another violation of Article 2(4)’. While it serves the purpose of presenting it as unprecedented, it ends up normalising the previous violations. It is difficult to defend this normalisation either in doctrine or in practice, as these violations caused immense misery to the people in those states.

Thirdly, Brunk and Hakimi argue that ‘Western countries have offered different limiting principles for other actions that they have taken that have pushed the boundaries on or violated the UN Charter.’ These limiting principles are, in other words, explanations for what the Western states have done in those specific cases. They state that these principles are the humanitarian crisis in Kosovo and the repeated use of chemical weapons in Syria. They further underscore that these principles are important, even if they are unpersuasive in law. However, their claim is unconvincing. If they are unpersuasive in law, they cannot be called legal principles, at least. An essential feature of any principle, even a non-legal one, is its generality of application in similar situations. It is doubtful whether Western states may have applied these principles uniformly in similar cases. In reality, these principles or arguments were offered as justifications for the use of force and not the use of force to defend those principles devoid of any immediate gains. An undeniable feature of post-World War II international law is that states attempt to give legal justification for even the gravest of their violations, including invasions. Western states attempted to do the same through these principles. Russia, too, tried to provide such a justification through the allegations of genocide, and it is the subject matter of a dispute before the International Court of Justice.

Fourthly, and related to the above, Brunk and Hakimi argue that these limiting principles communicate a sustained commitment to the core norm against forcible annexations of foreign territory. Thus, by invading Ukraine, Russia is violating the core norm against forcible annexations of foreign territory. They further maintain that we must insist that this core norm should not be touched to avoid regressing to the colonial projects of the past. They suggest that the Russian invasion and similar acts take us to the colonial past. This comparison has at least two problems. Firstly, calling the use of force to annex territory colonialism in an unqualified way, in many respects, simplifies the latter. Most importantly, it dehistoricises it. In character, scale, and gravity, colonialism is a complex economic, political, and social phenomenon. Therefore, it is difficult to imagine that the use of force in attempts to annex territories would take us to colonial situations in an ahistorical way. Secondly, this comparison ignores that critical third world scholarship has been unravelling the colonial continuities in international law in general. Critical third world scholarship has been pointing to the practices of Western states, including their violation of the prohibition of the use of force in situations like Iraq and the war against terrorism. This critical scholarship also refers to the arguments of Western states resembling colonial justifications. Anastasiya Kotova and Ntina Tzouvala, in their contribution to the same issue of the journal, point to this critical scholarship persuasively. Brunk and Hakimi, while attempting to present the gravity of the Russian invasion, make asymmetrical comparisons and ignore critical perspectives in international law.

Lastly, the Russian invasion is another violation of the law governing the use of force. As lawyers, we know that we cannot imagine a law beyond any violations. For any and every law, there is a possibility of violations by those the law addresses. It is essential to establish the illegality and responsibility and consequences for it. However, Brunk and Hakimi, even stating the illegality of the Russian invasion in international law, go beyond it to present its exceptional implications to the established principle of territorial integrity of states. While its implications are palpable, its remedy does not lie in presenting it as exceptional. Instead, it is essential to show the collective voice of states on the illegal nature of the Russian invasion. It is difficult to imagine coming together of states, including those on the sidelines, to collectively voice the illegality of the Russian invasion without pointing to the past actions of Western states. Scholarly interventions do well by underlining the need for Western states’ self-reflection on their past violations and political assurance for future commitments, which may lead to the collective articulation of the illegality of the Russian invasion.

Dr. Srinivas Burra is Associate Professor & Associate Dean in the Faculty of Legal Studies at South Asian University, New Delhi.

Read more on this topic in the Asian Journal of International Law.